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Gornell Law Schoul Library
Cornell oe Library
KF 9219.A92 1916

A treatise on federal criminal law proc:

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A
TREATISE

ON

FEDERAL CRIMINAL LAW
PROCEDURE

WITH

FORMS OF INDICTMENT

AND

WRIT OF ERROR

AND

THE FEDERAL PENAL CODE

BY wiey
WILLIAM H. ATWELL,

Ex. U. S. Attorney, Dallas, Texas.
Southwestern University, 1889.
University of Texas, 1881.

 

SECOND EDITION

 

CHICAGO:

T. H. FLOOD & CO.
1916.
Le Oe Nae
Dedicated to that splendid Nefacter—my friend—the
Honorable Edward R. Meek, United States District Judge
for the Northern District of Texas.
Copyright 1911
WiiiiamM H. ATWELL

Copyright 1916
Witiiam H. ATWELL
PREFACE TO FIRST EDITION

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

No especial claim of originality is made for the pages that
follow. Reference books, annotations, dictionaries, encyclo-
pedaes, and reports of the Courts have been frequently and
studiously consulted. A great portion of the work, however,
has been taken from my own annotations, 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 very earnestly,

WILLIAM H. ATWELL.
August 1, 1910.
PREFACE TO SECOND EDITION

In 1910 the first edition of my work on Federal Criminal
Law was published. It was generously received by the pro-
fession. 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 decisions. 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 such law
may be found, and this is often all the busy, painstaking
lawyer wants.

WILLIAM H. ATWELL.

Dallas, Texas, March 1, 1916.
TABLE OF CONTENTS

CHAPTER I.

THE UNITED STATES CONSTITUTION.

wo

SIN PIO ge wo

The U. S. Constitution—Supreme Law.
Arts. V, VII, III, I.
Source of Federal Law.
Republican Guaranties.
Infamous Crimes.
. Felonies—misdemeanors.
Jeopardy.
. Identity of offense must be shown.
Witness against self.
. Witness against self—Continued.
Art. VI of Constitution as bearing on tril by Jury; Copy of In-
dictment and Confronting by Witnesses.
9. Federal Courts controlled by Federal Statute only.

p

p

CHAPTER II.
GENERAL PROVISIONS APPLICABLE TO THE PRACTICE.

§10. Judicial Code and the Courts.

10a. Trial—public.

11. U.S. Commissioners.

lla. Contempts.

11b. Contempt Defined.

lic. Contempt pendente lite.

12. Prosecution Begun by Indictment.

13. Grand Jury and Indictment.

13a. Grand Jury and Indictment—Continued.
13b. Copy of the Indictment.

13c. Evidence before Grand Jury.

13d. Motion to Quash Indictment or Other Dilatory Plea.
13c. Information.

14. Preliminary Proceedings.

14a. Warrant to Issue—When.

14b. Question of Indictment on Removal.

14c. Arraignment.

15. Bail Bond—Recognizance—Action Thereon.
25a.

26.

26a.
26b.
26c.

27.

27a.

34a.

35a.

36.

36a.
36b.

37.

TABLE OF CONTENTS.

. Bail During Trial.

Challenges.

. Consolidation of Indictments.
. Impeachment of Verdict by Juror.

Indictment and Return of Same.

. Endorsement on Indictments.

Consolidation of Indictments.
Question of Duplicity in Indictment.
Confessions.

. Confessions—Continued.

Admissibility of Documentary Evidence Secured Illegally.

. Method for Recovery of Illegally Secured Evidence.
. Production of Documents.

Comments or Improper Argument of District Attorney.

. Procedure When Improper Argument or Remarks are Made.

Prosecuting Officer in Grand Jury Room; Limits of his Expression.
Jury—Right of—Waiver—Necessity for Full Number—Illegal to
Try with Eleven.

. Comments by the Court.

Care of Jury—Moral Weight of Verdict; Legal Weight of Verdict;
Newspapers with Jury—Attempts to Influence Verdict.

Setting Aside Verdict.

Evidence of Good Character—Charge on Presumption Thereof.

Good Character Becomes a Fact.

Charge on, Refused When.

Proof of Other Offense.

Instructions of the Court, whether Written or Oral, Special

Instructions.
Exceptions to Charge after Jury Retired.
Opinion of Court—How Guarded.

. The Court not Mere Presiding Officer.

Court Cannot Comment on Lack of Evidence—Presumption of
Good Character.

Further Limitations on Court.

Verdict as to Part of Counts.

Sentence and Correction Thereof.

. Single Sentence, What Is.

No Authority to Suspend Sentence.

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.

Sentence not Absolutely Void; Resentencing.

Remission of Penalty on Forfeited Recognizance.

Fine Abated by Death.

Bail After Affirmance.

Bail Matter of Discretion and Matter of Right, When.

Voluntary Givirig of Bond no Defense to Surety Liability.

Severance—Separate Trials—Discretion of Court.
§ 38.

38a.
39.
39a.

40.
40a.

41,
42.

42b.
42c.
42d.
A2e.
A2f.
42g.
42h.

42i.
42}.

42k.

42).

42m.

42n.

420.

42p.

TABLE OF CONTENTS. 11

Habeas Corpus—Conclusions of Law Therein Instead of State-
ment of Facts.

Habeas Corpus not to be used as Writ of Error.

Immunity under Commerce Act by Reason of Testimony.

Immunity Governs Testimony by the Commissioner of Corpora-
tions; As Applied to the Fifth Amendment; As Applied to Sec-
tion 860; Duces Tecum Basis of.

Improper Person in Grand Jury Room.

Hearsay Testimony Before Grand Jury—Stenographer Before
Grand Jury.

Private Prosecutor Unknown in Federal Courts.

Proof of Witness’s Former Conviction.

CHAPTER III.

PRACTICE SUGGESTIONS.

. Aliens.

Accomplice.

Alaska—Territorial Courts.

Assignment of Errors.

Army and Navy: Court Martial, Need Control by Civil Courts.

Appeal and Writ of Error: Forma Pauperis.

Bill of Particulars.

Corporations—Indictment of; Individual Aiding and Abetting—
Procedure.

Error, Not Assigned, Not Ordinarily Noticed.

Continuance—Granting is Matter of Discretion; Application which
shows Mental Weakness of Defendant Requires a Court to Try
That Issue First.

Extradition; Not Defeated by Habeas Corpus; Technicality of
Trial not Required; General Rules For; Certified Copy from
Secretary of State Sufficient.

Judge—Disqualification of—How to Proceed; does Not Apply to
Appellate Judges.

Nolo Contendere—Practice Regulating; After Plea Accepted Can-
not be Withdrawn Except by Leave of Court.

New Trial; Discretion of Court—Rulings on Not Assigned as Er-
ror; If Court Refuses to Exercise Its Discretion Such Failure is
Error.

Limitations; Excepts Fugitives; Federal and not State Statutes
Regulate; Revenue Laws, Prosecutions Under—Within What
Time; Filing of Affidavit Before Commissioner Will not Stop
Running of, nor does Nolle Prosse; May be Raised by De-
murrer.

Sherman Law—Trust Statute; Federal Trade Commission; Pur-
chase of Competing Plants; Must be Undue Restraint; Stand-
ard Oil Cases—Tobacco Cases.
12

42q.

re

42s.

43.

45.
46.
47.

47a.
47b.

48.

48a.

49.
50.

51.

5la.

52a.

53.

53a.

53b.
53c.

53d.

54.

55.

TABLE OF CONTENTS.

Verdict, Motion to Direct, Waiver; coercing of Verdict.

Writ of Error—Supersedeas; Direct to Supreme Court, When;
Pauper has right to.

Hand Writing, Comparison Statute; Cannot be Introduced for
Mere Purpose of.

CHAPTER Iv.
POSTAL CRIMES.

Jurisdiction of State and Federal Courts.

Section 3833 as to Jurisdiction.

Breaking Into and Entering Post Office.

Unlawfully Entering Postal Car or Interfering With Postal Clerk.
Assaulting Mail Carrier with Intent to Rob; Robbing Mail and
Injuring Letter Boxes or Mail Matter and Assaulting Carrier.

Reasonable Doubt in Appellate Court.

Duplicitousness in Indictment Charging Robbery of Mail Clerk.

Obstructing Mail.

Presumption as to Mail on Train.

Ferryman Delaying Mail.

Post Master or Other Employee Detaining or Destroying News-
papers.

Post Master or Employee Detaining or Destroying or Embezzling
Letters; Decoy Letters—Proper and Improper Use of.

Fact case; Indictment Under this Section.

Stealing, Secreting, Embezzling, etc. Mail Matter or Contents.

Indictment Under this Section.

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.

Indictment Under this Section; Satisfying by Bill of Particulars;
Setting Forth Whole Instrument.

Matter Intended to Incite Arson, Murder or Assassination.

Prize Fight Films—Such Film for One’s Own Convenience; No
Violation; Pictorial Representation Included.

Paid Editorial, etc., to be Marked Advertisement; Statute relates
to Second Class Matter.

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.

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.
TABLE OF CONTENTS. 13

. Other Illustrative Cases under This Statute—Pretending to be

Eminent Physician.
Civil Statute against Fraudulent Use of Mail.
Fraudulently Assuming Fictitious Address or Name.
Lottery; Gift Enterprise, Circulars, etc., not Mailable.
What is a Lottery or Chance.

. Illustrative Cases of Chance.

Land Schemes.

Issuing Stock.

Other Cases Under the Lottery Statute.
Post Masters not to be Lottery Agents.
False Returns to Increase Compensation.
Civil Remedy to Recover Compensation.
Collection of Unlawful Postage.
Unlawful Pledging or Sale of Stamps. .

. Receiving Stolen Property, etc.

Failure to Account for Postage and to Cancel Stamps.
Issuing Money Order Without Payment.

. Conviction Under One Statute, No Bar,—When.

Counterfeiting Money Orders, etc. and Fraudulently Issuing the
same after having received the money therefor.

Counterfeiting Postage Stamps, Domestic or Foreign.

Misappropriation of Postal Funds or Property By Use of Failure
to Deposit.

Rural Carriers Responsible Under Foregoing Section.

Stealing Post Office Property.

Other Minor Offenses, Including False Claims and Employees
Contract.

Illegally Carrying Mail.

All Persons Employed in Service, Whether Taken Oath or Not,
Are Employees.

CHAPTER V.

COUNTERFEITING AND OTHER OFFENSES AGAINST THE

§ 77.
78.
78a.

79.
80.
81.

CURRENCY, COINAGE AND OTHER SECURITIES.

Definition of Obligation and Other Securities.

Illustrative Cases.

Using Plates, Having in Possession, Similitude, Unsigned Bank-
notes.

The Neall Case—Deheuns Case—Indictment, etc.

Forging or Counterfeiting U. S. Securities.

Forging or Counterfeiting U. S. Securities and National Bank-
notes.

Confederate Money; Likeness and Similitude.

Other Securities Including State Banknotes.

Allegation of Knowledge in Counterfeiting.

Description of Obligation or Counterfeit.
§ 99.
100.
101.
102.
103.

108a.

104.
105.

105a.
105b.

106.

106a.
106b.

107.
108.

108a.

109.
110.
111.
112.

112a.

113.
114.
115.

115a.

TABLE OF CONTENTS.

Circulating Bills of Expired Corporation.

Mutilating or Defacing National Banknote.

Imitating National Banknotes; Printing Advertisements Thereon.

Imitating U. S. Securities or Printing Advertisements Thereon;
Business Cards.

Notes Less Than One Dollar, Not to be Issued.

Counterfeiting Gold or Silver Coin or Bars.

Resemblance or Similitude.

. Resemblance or Similitude Continued; Jury Question.
. Advertisements—Like Coins, etc.

Counterfeiting Minor Coins.

Making or Uttering Coins in the Resemblance of Money.

Making or Issuing Devices of Minor Coins.

Statutes Relating to Coinage, Mutilation, Debasing, Counter-
feiting of Dies, Foreign Coins.

. Counterfeiting Dies, Hubs, Molds, etc.

Counterfeiting Obligations to be Forfeited.
Search Warrant in Aid of Above Statutes.

CHAPTER VI.
OFFENSES AGAINST PUBLIC JUSTICE.

Perjury.

Form of Oath Immaterial.

Competent Tribunal, Officer, etc.

Illustrations of Successfully Laid Perjury.

Materiality and Willfulness.

Materiality Continued.

Sufficiency of Indictment. ~

Proof.

Proof Continued.

Other Cases. _

Subornation of Perjury.

Attorney Suborning.

Elements of Subornation.

Stealing or Altering Process, Procuring False Play, etc.

Obstructing Process or Assaulting an Officer, etc.

Advice to Avoid Service of Process May Be Obstruction.

Destroying or Stealing, etc., Public Records.

Destroying Records by Officer in Charge.

Forging Signature of Judge, etc.

Intimidation or Corruption of Witness or Grand or Petit Juror or
Officer.

Illustrations of Intimidation.

Conspiring to Intimidate Party, Witness or Jury.

Attempt to Influence Jury.

Allowing Prisoner to Escape.

Applies to State Jailer.
§ 116.
117.

118.
119.
120.
121.
122.
123.

123a.

125.

§ 126.
127.
128.
129.

130.

131.
132.

133.
134.
135.

136.
137.
138.
139.

140.

141.
142.

143.
144.
145.
146.

TABLE OF CONTENTS. 15

Rescuing, etc., Prisoner, etc.; Concealing, etc., Prisoner for Whom
Warrant has been Issued.

Rescue at Execution; Rescue of Prisoner and Rescue of Body of
Executed Offender.

Extortion by Internal Revenue Informers.

Misprision of Felony.

Bribery.

Bribery of a Judge or Judicial Officer.

Judge or Judicial Officer Accepting Bribe, etc.

Jurors, Referee, Master, United States Commissioner or Judicial
Officer, etc., Accepting Bribe.

Indictment—Who is Officer.

Witness Accepting Bribe.

Members of Congress Accepting Bribes, etc.

CHAPTER VII.
OFFENSES RELATING TO OFFICIAL DUTIES.

Extortion, Generally; Definition, Etc.

Extortion as a Federal Offense: 5481—85.

Receipting for Larger Sums Than are Paid: 5483—86.

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.

Disbursing Officers Unlawfully Converting, Etc., Public Money;
New Code, 87.

Failure of Treasurer to Safely Keep Public Funds: New Code, 88.

Custodians of Public Money Failing to Safely Keep: New
Code, 89.

Failure of Officer to Render Accounts, Etc.: 90.

Failure to Deposit, as Required: New Code, 91.

Provisions of the Five Preceding Sections, How Applied: New
Code, 92.

Record Evidence of Embezzlement: New Code, 93.

Prima Facie Evidence: New Code, 91.

Evidence of Conversion: New Code, 95.

Banker, Etc., Receiving Deposit From Disbursing Officer: New
Code, 96.

Embezzlement by Internal Revenue Officers, Etc.: New Code,
97.

Officer Contracting Beyond Specific Appropriation: 5503—98.

Officer of United States Court Failing to Deposit Moneys, Etc.:
5504—99.

Receiving Loan or Deposit from Officer of Court: New Code, 100.

Failure to Make Returns or Reports: 1780—101.

Aiding in Trading in Obscene Literature, Etc.: 1785—102.

Collecting and Disbursing Officers Forbidden to Trade in Public
Funds: 1788 and 1789—103.
16

§ 147.

148.

149.
150.
151.
152.
153.
154.
155.
156.
157.

158.
159.

160.
161.

162.

163.
164.

165.

166.

167.

168.

169.

TABLE OF CONTENTS.

Judges, Clerks, Deputies, Marshals, and Attorneys, and Their
Deputies Forbidden to Purchase Witness Fees, Etc.: 29 St. L.,
595—104.

Falsely Certifying, Etc., as to Record of Deeds: New Code, 105.

Other False Certificates: New Code, 106.

Inspector of Steamboats Receiving Illegal Fees: 5482—107.

Pension Agent Taking Fees, Etc.: 5487—108.

Officer not to Be Interested in Claims Against United States:
5498—109.

Member of Congress, Etc., Soliciting or Accepting Bribe; 1781
and 5500 and 5502—110.

Offering, Etc., Member of Congress Bribe: 5450—111.

Member of Congress Taking Consideration for Procurmg Con-
tracts, Offices, Etc.; Offering Member Consideration, Etc.:
1781—112.

Member of Congress Taking Compensation in Matters to Which
the United States Is a Party: 1782—113.

Member of Congress Not to Be Interested in Contract: 3739—
114.

Officer Making Contract with Member of Congress: 3742—115.

Contracts to Which the Two Preceding Sections Do Not Ap-
ply: 3740—116.

United States Officer Accepting Bribe: 5501 and 5502—117.

Political Contributions Not to Be Solicited by Certain Officers:
New Code, 118.

Political Contributions Not to Be Received in Public Offices:
New Code, 119.

Immunity from Official Proscription, Etc.: New Code, 120.

Giving Money, Etc., to Officials for Political Purposes Prohibited:
New Code, 121.

Penalty for Violating the Provisions of the Four Preceding Sec-
tions, New Code, 122.

All of the Above, Civil Service Act: I Sup., 396.

Government Officers, Etc., Giving Out Advance Information
Respecting Crop Reports: New Code, 123.

Government Officer, Etc., Knowingly Compiling or Issuing False
Statistics Respecting Crops: New Code, 124.

Counterfeiting Weather Forecasts Interfering with Signals,
Etc.: 33 St. L., 864.

CHAPTER VIII.

OFFENSES AGAINST OPERATIONS OF THE GOVERNMENT,

§ 170.
171.
172.

New Code Generally Under This Head.
Forgery of Letters Patent.
Forging Bond, Bid, Public Record, Etc.

172a. Covers Civil Service Examination, Etc.

173.

Forging Deeds, Powers of Attorney, Etc.
§ 174.
175.
176.

176a.

177,
178.
179.
180.
181.

18la.

182.
183.

183a.

184,

184a.

185.

185a.

186.
187.
188.
189.
190.
191.
192.
193.
194.
195.
196.
197.
198.
199.
200.

201.
202.
203.
204.
205.
206.
207.
208.
209.

210.
211.
212.
213.
214,
215.

TABLE OF CONTENTS. 17

Having Forged Papers in Possession.

False Acknowledgments.

Falsely Pretending to be a United States Officer.

Intent to Defraud, Etc.

False Personation of Holder of Public Stocks.

False Demand or Fraudulent Power of Attorney.

Making or Presenting False Claims.

Embezzling Arms, Stores, Etc.

Conspiracies to Commit Offenses Against the United States;
All Defendants Liable for Acts of One.

Indictment.

Sufficiency of Description.

Venue.

Special Charge on Venue.

Illustrative Cases.

Illustrative Cases Continued.

Bribery of United States Officer.

Officer—Meaning of.

Unlawful Taking or Using Papers Relating to Claims.

Persons Interested not to Act as Agents of the Government.

Enticing Desertions From the Military or Naval Service.

Enticing Away Workmen.

Injuries to Fortification, Harbor Defenses, Etc.

Unlawful Entering Upon Military Reservation, Fort, Etc.

Robbery or Larceny of Personal Property of the United States.

Embezzling, Stealing, Etc., Public Property.

Receivers, etc., of Stolen Property.

Timber Depredation on Public Lands.

Timber, Etc., Depredation on Indian and other Reservations.

Boxing, Etc., Timber on Public Lands for Turpentine, Etc.

Setting Fire to Timber on Public Lands.

Failing to Extinguish Fires.

Breaking Fence or Gate Enclosing Reserve Lands, or Driving or
Permitting Live Stock to Enter Upon.

Injuring or Removing Posts or Monuments.

Interrupting Service.

Agreement to Prevent Bids at Sale of Lands.

Injuries to United States Telegraph, Etc., Lines.

Counterfeiting Weather Forecasts.

Interfering with Employees of Bureau of Animal Industry.

Forgery of Certificate of Entry.

Concealment or Destruction of Invoices, Etc.

Resisting Revenue Officers; Rescuing or Destroying Seized
Property, Etc.

Falsely Assuming to be Revenue Officers.

Offering Presents to Revenue Officers.

Admitting Merchandise to Entry for Less than Legal Duty.

Securing Entry of Merchandise by False Samples, Etc.

False Certification by Consular Officers.

Taking Seized Property from Custody of Revenue Officer.
18

§ 216.
217.

218.
219.

220.
221.
222.

222a.

223.

223a.

224,

TABLE OF CONTENTS.

Forging, Etc., Certificate of Citizenship.

Engraving, Etc., Plate for Printing or Photographing, Conceal-
ing or Bringing Into the United States, Etc.,. Certificate of
Citizenship.

False Personation, Etc., in Procuring Naturalization.

Using False Certificate of Citizenship or Denying Citizenship,
Etc.

Using False Certificate, Etc., as Evidence of Right to Vote.

Falsely Claiming Citizenship.

Taking False Oath in Naturalization.

Oath Must be Material.

Provisions Applicable to all Courts of Naturalization.

To Cancel Certificate.

Corporations, Etc., Not to Contribute Money for Political Elec-
tions, Etc.

CHAPTER IX.

OFFENSES AGAINST THE EXISTENCE OF THE GOVERNMENT.

§ 225.
226.
227.
228.
229.
230.
231.
232.

233.

233a.

§ 234.

234a.

235.
236.
237.
238.
239.
240.

241.
241a.
242.

Treason, Generally.

The Statute: 5331—1.

Punishment: 5332—2.

Misprision of Treason: 5333—3.

Inciting or Engaging in Rebellion or Insurrection: 5334—4.

Criminal Correspondence with Foreign Governments: 5335—5.

Seditious Conspiracy: 5336—6.

Recruiting Soldiers or Sailors to Serve Against the United States:

5337—7.

Enlistment to Serve Against the United States: 5338—8.

Ordinance—Purchase, sale or Disposal of.

CHAPTER X.
OFFENSES AGAINST NEUTRALITY.

Neutrality Generally.

President’s Power to Enforce Neutrality.

Accepting Foreign Commission.

Enlisting in Foreign Service.

Arming Vessels Against People at Peace With the United States.

Forfeiture Without Conviction.

Augmenting Force of Foreign Vessel of War.

Military Expeditions Against People at Peace With the United
States.

Enforcement of Foregoing Provisions.

The President’s Authority Under This Section.

Compelling Foreign Vessels to Depart.
§ 243,
244.
245,

TABLE OF CONTENTS. 19

Armed Vessels to Give Bond on Clearance.
Detention by Collector of Customs.
Construction of This Chapter.

CHAPTER XI.

OFFENSES AGAINST ELECTIVE FRANCHISE AND CIVIL

§ 246,
247.

247a.
248.
249.
250.

251.
252.

253.
254,
255.
256.

257.

RIGHTS OF CITIZENS.

System of Government, Etc., Generally.

Conspiracy to Injure, Etc., Citizens in the Exercise of Civil
Rights. —

Indiana Election Case, and Right to Vote, Etc.

Right to Labor.

Other Illustrations.

Other Crimes Committed While Violating the Preceding Sec-
tion.

Depriving Persons of Civil Rights Under Color of State Law.

Conspiracy to Prevent Persons From Holding Office, or Officer
From Performing His Duty Under United States, Etc.

Unlawful Presence of Troops at Election.

Intimidation of Voters by Officers, Etc., of Army and Navy.

Officers of Army or Navy Prescribing Qualifications of Voters.

Officers, Etc., of Army or Navy Interfering with Officers of
Election, Etc.

Persons Disqualified From Holding Office: When Soldiers, Etc.,
May Vote.

CHAPTER XII.

OFFENSES AGAINST FOREIGN AND INTERSTATE COMMERCE.

§ 258.

258a.
259.

260.
261.
262.
263.
264.
265.

265a.

Dynamite, Etc., not to be Carried on Vessels or Vehicles Carrying
Passengers for Hire.

Explosives.

Interstate Commerce Commission to Make Regulations for
Transportation of Explosives.

Liquid Nitro-Glycerine, Etc., Not to be Carried on Certain
Vessels or Vehicles.

Marking of Packages of Explosives—Deceptive Marking.

Death or Bodily Injury Caused by Such Transportation.

Importation and Transportation of Lottery Tickets, Etc.

Interstate Shipment of Intoxicating Liquors, Delivery to be Made
Only to Bona Fide Consignee.

Common Carrier, Etc., not to Collect Purchase Price of Inter-
state Shipment of Intoxicating Liquors.

Decision Under Last Statute.
20

§ 266.
267.

267a.
268.
268a.
269.
270.
271.
271a.
271b.
271c.
271d.
271e.
271f.

@ 279.
273.
274.
275.
276.
277.
278.
279.
280.
281.
282.
283.
284,
285.
286.
287.
288.
289.
290.
291.
292.
293.
294.
295.
296.
296a.
297.
298,

TABLE OF CONTENTS.

Packages Containing Intoxicating Liquors Shipped in Interstate
Commerce to be Marked as Such.

Importation of Certain Wild Animals, Birds, and Reptiles For-
bidden.

Migratory Game—Birds.

Transportation of Prohibited Animals.

Constitutionality of Statute.

Marking of Packages.

Penalty for Violation of Preceding Sections.

Depositing Obscene Books, Etc., with Common Carrier.

The Statute is Constitutional.

Anti-Pass Law.

Theft of Goods in Interstate Commerce.

Cotton Future Contracts.

Opium or Coco Leaves, Their Salts, Derivatives or Preparations.

Interstate Commerce—Regulation Thereof.

CHAPTER XIII.
SLAVE TRADE AND PEONAGE.

Legislation Founded on Amendments.

Confining or Detaining Slaves on Board Vessel.
Seizing Slaves on Foreign Shore.

Bringing Slaves Into United States.

Equipping Vessels for Slave Trade.

Transporting Persons to be Held as Slaves.

Hovering on Coast With Slaves on Board.

Serving in Vessels Engaged in Slave Trade.
Receiving or Carrying Away any Person to be Held as a Slave.
Equipping, Etc., Vessels for Slave Trade.

Penalty on Persons Building, Equipping, Etc., Vessels.
Forfeiture of Vessel Transporting Slaves.

Receiving Persons on Board to be Sold as Slaves.
Vessel] Found Hovering on Coast.

Forfeiture of Interest in Vessels Transporting Slaves.
Seizure of Vessels Engaged in the Slave Trade.
Proceeds of Condemned Vessels—How Distributed.
Disposal of Persons Found on Board Seized Vessels.
Apprehension of Officers and Crew.

Removal! of Persons Delivered from Seized Vessels.
To What Port Captured Vessels Sent.

When Owners of Foreign Vessels Shall Give Bond.
Instructions to Commanders of Armed Vessels.
Kidnapping,

Holding or Returning to Peonage.

Involuntary Servitude, Etc..—Meaning of.
Obstructing Execution of Above.

Bringing Kidnapped Persons Into the United States.
TABLE OF CONTENTS. 21

CHAPTER XIV.

OFFENSES WITHIN THE ADMIRALTY, MARITIME, AND

TERRITORIAL JURISDICTION OF THE
UNITED STATES.

Note.—The first numbers indicate the old Sections: then follows a
dash, and after the dash the numbers indicate the Sections in the new

Code.

§ 299.
300.
301.
302.
303.
304.

305.

306.
307.
308.

309.
310.

311.

312.
313.
314.
315.
316.
317.
318.

Generally, Federal Territory.

Places Defined: New Code, 272.

Murder: 5339—273.

Murder Verdict: 29 Stat. L., 487.

Manslaughter: 5341—274, /

Punishment for Murder and Manslaughter: 5339 and 5343—
275.

Assault with Intent to Commit Murder, Rape, Robbery, Etc.:
5346—276.

Attempt to Commit Murder or Manslaughter: 5342—277.

Rape: 5343—278.

Having Carnal Knowledge of Female Under Sixteen: New Code,
279.

Seduction of Female Passenger on Vessel: 5349—280.

Payment of Fine to Female Seduced; Evidence Required; Limita-
tions on Indictment: 5350 and 5351—281.

Punishment for Loss of Life by Misconduct of Officers, Owners,
Charterers, Etc., of Vessels: 5344—282.

Maiming: 5348—283.

Robbery: 5370—284.

Arson of Dwelling House: 5385—285.

Arson of Arsenal, Etc.; Other Buildings, Etc.: 5886—286.

Larceny: 5356—287.

Receiving, Etc., Stolen Goods: 5357—288.

Laws of State Adopted for Punishing Wrongful Acts, Ete.:
5391—289.

318a. Libel not Federal Offense.

CHAPTER XV.

PIRACY AND OTHER OFFENSES UPON THE HIGH SEAS.

§ 319.
320.
321.
322.

322a.

Generally.

Piracy in the Code: 5368—290.

Maltreatment of Crew by Officers of Vessel: 5347—291.
Extradition for this Offense: New Code, 321.
Extradition.
22

§ 323.
323a.
324.
325.
326.
327.
328.
329,
330.
331.
332,

333.
334.

335.
336.
337.
338.
339.

340.

341.

§ 342.
343.

344.
345.
346.
347.
348.
349.
350.
351.
352.
353.
354.

TABLE OF CONTENTS.

Inciting Revolt of Mutiny on Ship-Board: 5359—292.

Elements of Mutiny.

Revolt and Mutiny on Ship-Board: 5360—293.

Seaman Laying Violent Hands-on His Commander: 5369—294.

Abandonment of Mariners in Foreign Ports: 5363—295.

Conspiracy to Cast Away Vessel: 5364—296.

Plundering Vessel, Etc., in Distress: 5358—297.

Attacking Vessel With Intent to Plunder: 5361—298.

Breaking and Entering Vessel, Etc.: 5362—299.

Owner Destroying Vessel at Sea: 5365—300.

Other Persons Destroying or Attempting to Destroy Vessel at
Sea: 5366 and 5367—301.

Robbery on Shore by Crew of Piratical Vessel: 5371—302.

Arming Vessel to Cruise Against the Citizens of the United
States: 5284—303.

Piracy Under Color of a Foreign Commission: 5373—304.

Piracy by Subjects or Citizens of a Foreign State: 5374—305.

Running Away With or Yielding Up Vessel of Cargo: 5383—306.

Confederating, Etc., with Pirates: 5384—307.

Sale of Arms and Intoxicants Forbidden in Pacific Islands: 32
St. L., 33—308.

Offenses Under Preceding Section Deemed on High Seas: Act
February 14, 1902—309.

‘Vessels of the United States’? Defined: New Code, 310.

CHAPTER XVI.
CERTAIN OFFENSES IN THE TERRITORIES.

No Conflict Between Territory Code and United States Code:
New Code, 311.

Circulation of Obscene Literature, Promoting Abortion, How
Punished: 5389—312.

Polygamy: 5352—313.

Unlawful Cohabitation: New Code, 314.

Joinder of Counts: New Code, 315.

Decisions of Foregoing Statutes.

Adultery: I Sup., 568—316.

Incest: I Sup., 568—317.

Fornication: I Sup., 568—318.

Certificates of Marriage; Penalty for Failure to Record.

Prize Fights, Bull Fights, Etc.: II Sup., 446—320.

“Pugilistic Encounter” Defined: II Sup., 446—321.

Train Robberies in Territories, Etc.: New Code, 322.
§ 355.

355a.

356.

357.

358. |

359.

359a.

360.

360a.

361.
362.
363.

364.
365.

365a.

366.

367.
368.

368a.

369.

370.

370a.

§ 371.
371a.

371b.

372.
373.
374.
374a.

374b.

TABLE OF CONTENTS. 23

CHAPTER XVII.
INTERNAL REVENUE.

Raising of Revenue, Generally.

Offer of Compromise.

Trade or Business Not to Be Carried on Until Revenue Paid:
3232.

Partnerships: 3234.

Must Exhibit Stamps: 3239.

Rectifiers, Liquor Dealers, Etc., Carrying on Business Without
Paying Special Tax, Etc.: 3242—16.

Indictment.

C. O. D. Decisions Under Above.

Delivery to Customer.

Fact Cases.

Proof of License,

Distiller Defrauding or Attempting to Defraud United States of
Tax on Spirits: 3257.

Breaking Locks, Gaining Access, Etc.: 3268.

Signs to Be Put Up By Distillers and Dealers and Other Regula-
tions: 3279, 3280, 3281, 3296.

Concealment, Etc.

Books to Be Kept by Rectifiers and Wholesale Dealers: Penalty:
3318.

Stamps and Brands to be Effaced from Empty Cask 3324.

Re-use of Bottles, Etc., Without Removing Stamps 29 Stat. L.,
627—6.

Must be Evidence of Re-filling.

Removing Any Liquors or Wines Under Any Other Than Trade
Names; Penalty: 3449.

Oleomargarine.

Oleomargarine—Indictment.

CHAPTER XVIII.
NATIONAL BANKS.

General Provisions.

Federal Reserve Bank.

Aiding and Abetting.

Falsely Certifying Checks.
Wilfully.

Acting by Others.

Acting by Another Continued.
Heinze Case.
§ 375.

375a.
375b.

376.
377.

377a.
377b.

378.

378a.
378b.

379.

§ 380.
381.
382.

382a.

383.

§ 384.
385.

385a.
385b.

386.

386a.
386b.

387.

387a.
387b.

TABLE OF CONTENTS.

Embezzlement, Abstraction, Misapplication, False Entries,
Etc.—Penalty.

Misapplication and Other Cases.

False Entries, Mistakenly Made.

Abstraction.

Misapplication.

Cases of Misapplication and Indictment.

Indictment Duplications, When.

False Entries.

False Entries and False Reports Continued.

Admission of Books.

Other Cases.

CHAPTER XIX.
BANKRUPTCY.

Section 29 of the Act.

Other Offenses of the Section.
Illustrative Cases and Decisions.
Decisions Continued.

Failure to Pay Over Money.

CHAPTER XX.
FOOD AND DRUGS.

Act of June 13, 1906, Generally.
Criminal Sections.

Amendment Allowing Variations.
Criminal Practice Under.

Decisions.

Decisions Continued.

Misbranded Under New Amendment.
Importation of Opium.

Additional Opium Statutes.

These Statutes Constitutional.

CHAPTER XXI.

PANDERING AND PROHIBITING IMMORAL USE OF WOMEN

§ 388.

389.

389a.

390.

AND GIRLS.

The Act of February 20, 1907, Prohibiting Importation for
Prostitution.

Decisions.

Additional Decisions.

Importing Contract Labor.
§ 391.
392.
392a.
392b.

§ 393.
394,

395.
396.
397.
398.
399.
399a.
400.
401.

402.
AQ2a.
403.
404.
405.

405a.
406.
407.
407a.
408.
409.

§ 410.
411.
412.
413.
414.
415.

TABLE OF CONTENTS. 25

Pandering.

White Slave Act.

Decisions Under White Slave and Pandering Act.
Harboring Prostitutes and Making Reports Thereof.

CHAPTER XXII.
SOME GENERAL AND ACCEPTED PROVISIONS.

Punishment of Death by Hanging.

No Conviction to Work Corruption of Blood or Forfeiture of
Estate.

Whipping and the Pillory Abolished.

Jurisdiction of State Courts.

Illustrations.

Other Decisions.

Pardoning Power.

Pardon, Acceptance of and President’s Power.

Qualified Verdicts in Certain Cases.

Body of Executed Offender May be Delivered to Surgeon for
Dissection.

Who Are Principals.

Aiding and Abetting.

Punishment of Accessories.

Felonies and Misdemeanors.

Omission of Words, “Hard Labor’ Not to Deprive Court of
Power to Impose.

Imprisonment, and Where.

Repealing Provisions.

Parole of United States Prisoners.

For Construction of Parole Act.

Witnesses for Poor Accused.

Publicity of Contributions.

CHAPTER XXIII.
SMUGGLING.

Collection of Duties.

Passengers.

Offenses.

Offenses Continued.

Securing Entry by False Samples.
Concealing or Destruction of Invoices.
26 TABLE OF CONTENTS.

CHAPTER XXIV.

FORM FOR’ INDICTMENT.

CHAPTER XXvV.
CHAPTER ONE.

OFFENSES AGAINST THE EXISTENCE OF THE
GOVERNMENT

Treason.

Punishment of treason. fs

Misprision of treason.

Inciting or engaging in rebellion or insurrection.

Criminal correspondence with foreign governments.

Seditious conspiracy.

Recruiting soldiers or sailors to serve against the United States.
Enlistment to serve against the United States.

FOF SSE OV BO: bes

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.

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.
23.

25.

26.

TABLE OF CONTENTS. 27

Unlawful presence of troops at elections.

Intimidation of voters by officers, etc., of Army or Navy.

Officers of Army or Navy prescribing qualifications of voters.

Officers, etc., of Army or Navy interfering with officers of election,
etc.

Persons disqualified from holding office; when soldiers, etc., may
vote.

CHAPTER FOUR.

OFFENSES AGAINST THE OPERATIONS OF THE
GOVERNMENT.

Forgery of letters patent.

Forging bids, public records, etc.

Forging deeds, powers of attorney, etc.

Having forged papers in possession.

False acknowledgments.

Falsely pretending to be United States officer.

False personation of holder of public stock.

False demand on fraudulent power of attorney.

Making or presenting false claims.

Embezzling arms, stores, etc.

Conspiracy to commit offense against the United States; all
parties liable for acts of one.

Delaying or defrauding captor or claimant, etc., of prize property.

Bribery of United States officer.

Unlawfully taking or using papers relating to claims.

Persons interested not to act as agents of the Government.

Enticing desertions from the military or naval service.

Enticing away workmen.

Injuries to fortifications, harbor defenses, etc.

Unlawfully entering upon military reservation, fort, etc.

Robbery or larceny of personal property of the United States.

Embezzling, stealing, etc., public property.

Receivers, etc., of stolen public property.

Timber depredations on public lands.

Timber, etc., depredations on Indian and other reservations.

Boxing, etc., timber on public lands for turpentine, etc.

Setting fire to timber on public lands.

Failing to extinguish fires.

Fines to be paid into school funds.

. Trespassing on Bull Run National Forest, Oregon.

Breaking fence or gate inclosing reserved lands, or driving or per-
mitting live stock to enter upon.

Injuring or removing posts or monuments.

Interrupting surveys.

Agreement to prevent bids at sale of lands.

Injuries to United States telegraph, etc., lines.
TABLE OF CONTENTS.

Counterfeiting weather forecast.

Interfering with employees of Bureau of Animal Industry.

Forgery of certificate of entry.

Concealment or destruction of invoices, etc.

Resisting revenue officer; rescuing or destroying seized property,
etc.

Falsely assuming to be a revenue officer.

Offering presents to revenue officer.

Admitting merchandise to entry for less than legal duty.

Securing entry of merchandise by false samples, etc.

False certification by consular officer.

Taking seized property from custody of revenue officer.

Forging or altering ship’s papers or custom-house documents.

Forging military bounty-land warrant, etc.

Forging, etc., certificate of citizenship.

Engraving, etc., plate for printing, or photographing, selling, or
bringing into United States, etc., certificate of citizenship.

False personation, etc., in procuring naturalization.

Using false certificate of citizenship, or denying citizenship, etc.

Using false certificate, etc., as evidence of right to vote, etc.

Falsely claiming citizenship.

Taking false oath in naturalization proceedings.

Provisions applicable to all courts of naturalization.

Shanghaiing and falsely inducing person intoxicated to go on
vessel prohibited.

Corporations, etc., not to contribute money for political elections,
etc.

Hunting birds, or taking their eggs from breeding grounds, pro-
hibited.

CHAPTER FIVE.

OFFENSES RELATING TO OFFICIAL DUTIES.

Officer, etc., of the United States guilty of extortion.
Receipting for larger sums than are paid.

Disbursing officer unlawfully converting, etc., public money.
Failure of treasurer, etc., to safely keep public money.
Custodian of public money failing to safely keep, etc.
Failure of officer to render accounl|s, etc.

Failure to deposit as required.

Provisions of the five preceding sections, to whom applicable.
Record evidence of embezzlement.

Prima facie evidence.

Evidence of conversion.

Banker, etc., receiving deposit from disbursing officer.
Embezzlement by Internal Revenue officer, etc.

Officer contracting beyond specific appropriation.

Officer of United States court failing to deposit moneys, etc.
§ 100.
101.

102.

103.

104.
105.
106.
107.
108.
109.
110.
111.

112.

113.

114.
115.
116.

117.
118.
119.
120.
121.
122.
123.

124.

§ 125.
126.
127.
128.
129.
130.
131.
132.
133.

134,
135.

136.
137.

TABLE OF CONTENTS. 29

Receiving loan or deposit from officer of court.

Failure to make returns or reports.

Aiding in trading in obscene literature, etc.

Collecting and disbursing officers forbidden to trade in public
property. 3

Certain officers forbidden to purchase, etc., witness, etc., fees.

Falsely certifying, etc., as to record of deeds, etc.

Other false certificates.

Inspector of steamboats receiving illegal fees.

Pension agent taking fee, etc.

Officer not to be interested in claims against United States.

Member of Congress, etc., soliciting or accepting bribe, etc.

Offering, etc., Member of Congress bribe, etc.

Members of Congress taking consideration for procuring contract,
office, etc.; offering Member consideration, etc.

Member of Congress, etc., taking compensation in matters to
which United States is a party.

Members of Congress not to be interested in contract.

Officer making contract with Member of Congress.

Contracts to which two preceding sections do not apply.

United States officer accepting bribe.

Political contributions not to be solicited by certain officers.

Political contributions not to be received in public offices.

Immunity from official proscription.

Giving money to officials for political purposes prohibited.

Penalty for violating provisions of four preceding sections.

Government officer, etc., giving out advance information re-
specting crop reports

Government officer, etc., knowingly compiling or issuing false
statistics respecting crops.

CHAPTER SIX.

OFFENSES AGAINST PUBLIC JUSTICE.

Perjury.

Subornation of perjury.

Stealing or altering process; procuring false bail, etc.

Destroying, etc., public records.

Destroying records by officer in charge.

Forging signature of judge, etc.

Bribery of a judge or judicial officer.

Judge or judicial officer accepting a bribe, etc.

Juror, referee, master, etc., or judicial officer, etc., accepting
bribe.

Witness accepting bribe.

Intimidation or corruption of witness, or grand or petit juror, or
officer.

Conspiring to intimidate party, witness, or juror.

Attempt to influence juror.
30

§ 138.
139.
140.
141.

142.
144.

145.
146.

TABLE OF CONTENTS.

Allowing prisoner to escape.

Application of preceding section.

Obstruction process or assaulting an officer.

Rescuing, etc., prisoner; concealing, etc., person for whom warrant
has issued. :

Rescue at execution.

Rescue of prisoner.

Rescue of body of executed offender.

Extortion by informer.

Misprision of felony.

CHAPTER SEVEN.

OFFENSES AGAINST THE CURRENCY, COINAGE, ETC.

§ 147.
148.
149.
150.
151.
152.
153.
154.
155.

156.
157.
158.
159.
160.
161.

162.
163.
164.
165.
166.
167.
168.
169.
170.
171.

172.
173.

174.-
175.

“Obligation or other security of the United States” defined.

Forging or counterfeiting United States securities.

Counterfeiting national-bank notes.

Using plates to print notes without authority, etc.

Passing, selling, concealing, etc., forged obligations.

Taking impressions of tools, implements, etc.

Having in possession unlawfully such impressions.

Buying, selling, or dealing in forged bonds, notes, etc.

Secreting or removing tools or material used for printing bonds,

notes, stamps, etc.

Counterfeiting notes, bonds, etc., of foreign governments.

Passing such forged notes, bonds, etc.

Counterfeiting notes of foreign banks.

Passing such counterfeit bank notes.

Having in possession such forged notes, bonds, etc.

Having unlawfully in possession or using plates for such notes,
bonds, ete.

Connecting parts of different instruments.

Counterfeiting gold or silver coins or bars.

Counterfeiting minor coins.

Falsifying, mutilating, or lightening coinage.

Debasement of coinage by officers of the mint.

Making or uttering coins in resemblance of money.

Making or issuing devices of minor coins.

Counterfeiting, etc., dies for coins of United States.

Counterfeiting, etc., dies for foreign coins.

Making, importing, or having in possession tokens, prints, etc.,
similar to United States or foreign coins.

Counterfeit obligations, securities, coins, or material for counter-
feiting, to be forfeited.

Issue of search warrant for suspected counterfeits, etc., forfeiture.

Circulating bills of expired corporations.

Imitating national-bank notes with printed advertisements there-
on.
§ 176.

177.

178.

§ 179.
180.
181.
182.
183.
184.
185.
186.
187.
188.
189.
190.
191.
192.
193.
194.
195.

196.
197.
198.
199.
200.
201.
202.
203.
204.
205.

206.
207.
208.
209.

210.
211.
212.
213.
214.
215.

TABLE OF CONTENTS. 31

Mutilating or defacing national bank notes.

Imitating United States securities or printing business cards on
them.

Notes of less than one dollar not to be issued.

CHAPTER HEIGHT.

OFFENSES AGAINST THE POSTAL SERVICE.

Conducting post-office without authority.

Illegal carrying of mail by carriers and others.

Conveyance of mail by private express forbidden.

Transporting persons unlawfully conveying mail.

Sending letters by private express.

Conveying of letters over post routes.

Carrying letters out of the mail on board of vessel.

When conveying letters by private persons is lawful.

Wearing uniform of carrier without authority.

Vehicles, etc., claiming to be mail carriers.

Injuring mail bags, etc.

Stealing post-office property.

Stealing or forging mail locks or keys.

Breaking into and entering post-office.

Unlawfully entering postal car, etc.

Stealing, secreting, embezzlement, etc., mail matter or contents.

Postmaster or employee of postal service detaining, destroying, or

embezzling letter, etc.

Postmaster, etc., detaining or destroying newspapers.

Assaulting mail carrier with intent to rob, and robbing mail.

Injuring letter boxes or mail matter; assaulting carrier, etc.

Deserting the mail.

Delivery of letters by master of vessel.

Obstructing the mail. |

Ferryman delaying the mail.

Letters carried in a foreign vessel to be deposited in a post-office.

Vessels to deliver letters at post-office; oath.

Using, selling, etc., canceled stamps; removing cancellation marks
from stamps, etc.

False returns to increase compensation.

Collection of unlawful postage forbidden.

Unlawful pledging or sale of stamps.

Failure to account for postage and to cancel stamps, etc., by
officials.

Issuing money order without payment.

Obscene, etc., matter non-mailable.

Libelous and indecent wrappers and envelopes.

Lottery, gift enterprise, etc., circulars, etc., not mailable.

Postmasters not to be lottery agents.

Use of mails to promote frauds.
32

216.

217.

218.
219.
220.
221.

222.
223.

224.

225.
226.

227.
228,

229.
230.
231.

TABLE OF CONTENTS.

Fraudulently assuming fictitious address.
Poisons and explosives nonmailable.
Counterfeiting money orders.

Counterfeiting postage stamps.
Counterfeiting, etc., foreign stamps.

Inclosing higher class in lower class matter.
Postmaster illegally approving bond, etc.
False evidence as to second-class matter.
Inducing or prosecuting false claims.
Misappropriation of postal funds or property.
Employees not to become interested in contracts.
Fraudulent use of official envelopes.
Fraudulent increase of weight of mail.
Offenses against foreign mail in transit.
Omission to take oath.

Definitions.

CHAPTER NINE.

OFFENSES AGAINST FOREIGN AND INTERSTATE COMMERCE.

§ 232.
233.
234.

235.
236.
237.
238.

239.
240.

241.
242.
243.
244.
245.

§ 246.
247.
248.

Dynamite, etc., not to be carried on vessels or vehicies carrying
passengers for hire.

Interstate Commerce Commission to make regulations for trans-
portation of explosives.

Liquid nitroglycerin, etc., not to be carried on certain vessels and
vehicles.

Marking of packages of explosives; deceptive marking.

Death or bodily injury caused by such transportation.

Importation and transportation of lottery tickets, etc., forbidden.

Interstate shipment of intoxicating liquors; delivery of to be
made only to bona fide consignee.

Common carrier, etc., not to collect purchase price of interstate
shipment of intoxicating liquors.

Packages containing intoxicating liquors shipped in interstate
commerce to be marked as such.

Importation of certain wild animals and birds forbidden.

Transportation of prohibited animals.

Marking of packages.

Penalty for violation of three preceding sections.

Importation and transportation of obscene, etc., books, etc.

CHAPTER TEN.
THE SLAVE TRADE AND PEONAGE.
Confining or detaining slaves on board vessel.

Seizing slaves on foreign shore.
Bringing slaves into the United States.
§ 249.

250.
251.
252.

253.

254.
255.
256.
257.

258.
259.

260.
261.

262.
263.
264.
265.
266.
267.
268.
269.
270.
271.

TABLE OF CONTENTS. 33

Equipping vessels for slave trade.

Transporting persons to be held as slaves.

Hovering on coast with slaves on board.

Serving in vessels engaged in the slave trade.

Receiving or carrying away any person to be sold or held as a
slave.

Equipping, etc., vessel for slave trade.

Penalty on persons building, equipping, etc.

Forfeiture of vessel transporting slaves.

Receiving persons on board to be sold as slaves.

Vessels found hovering on coast,

Forfeiture of interest in vessels transporting slaves.

Seizure of vessels engaged in the slave trade.

Proceeds of condemned vessel, how distributed.

Disposal of persons found on board seized vessel.

Apprehension of officers and crew.

Removal of persons delivered from seized vessels.

To what port captured vessels sent.

When owners of foreign vessels shall give bond.

Instructions to commanders of armed vessels.

Kidnaping.

Holding or returning persons to peonage.

Obstructing enforcement of preceding section.

Bringing kidnaped persons into United States.

CHAPTER ELEVEN.

OFFENSES WITHIN THE ADMIRALTY AND MARITIME AND

§ 272.

273.
274.
275.
276.
277.
278.
279.
280.
281.

282.
283.
284.
285.
286.
287.
288.
289.

THE TERRITORIAL JURISDICTION OF THE
UNITED STATES.

Places within or waters upon which sections of this chapter shall
apply.

Murder.

Manslaughter.

Punishment for murder; for manslaughter.

Assault with intent to commit murder, rape, robbery, etc.

Attempt to commit murder or manslaughter.

Rape.

Having carnal knowledge of female under sixteen.

Seduction of female passenger on vessel.

Payment of fine to female seduced; evidenced required; limita-
tion on indictment. i

Loss of life by misconduct of officers, etc., of vessels.

Maiming.

Robbery.

Arson of dwelling house.

Arson of other buildings, etc.

Larceny.

Receiving, etc., stolen goods.

Laws of States adopted for punishing wrongful acts, etc.
34

§ 290.
291,
292.
293.
294,
295.
296.
297.
298.
299.
300.
301.
302.
303.
304.
305.
306.
307.
308.
309.
310.

§ 311,
312.
313.
314.
315.
316.
a17.
318.
319.
320.
Bol,
322,

TABLE OF CONTENTS,

CHAPTER TWELVE.

PIRACY AND OTHER OFFENSES UPON THE SEAS.

Piracy under the law of nations.

Mal-treatment of crew by officers of vessel.

Inciting revolt or mutiny on shipboard.

Revolt and mutiny on shipboard.

Seaman laying violent hands on his commander.
Abandonment of mariners in foreign ports.

Conspiracy to cast away vessel.

Plundering vessel in distress, etc.

Attacking vessel with intent to plunder.

Breaking and entering vessel, etc.

Owner destroying vessel at sea.

Other persons destroying or attempting to destroy vessel at sea.
Robbery on shore by crew of piratical vessel.

Arming vessel to cruise against citizens of the United States.
Piracy under color of a foreign commission.

Piracy by subjects or citizens of a foreign state.
Running away with or yielding up vessel or cargo.
Confederating, etc., with pirates.

Sale of arms and intoxicants forbidden in Pacific islands.
Offenses under preceding section deemed on high seas.
“Vessels of the United States” defined.

CHAPTER THIRTEEN.

CERTAIN OFFENSES IN THE TERRITORIES.

Places within which sections of this chapter shall apply.
Circulation of obscene literature; promoting abortion.
Polygamy.

Unlawful cohabitation.

Joinder of counts.

Adultery.

Incest.

Fornication.

Certificates of marriage; penalty for failure to record.
Prize fights, bull fights, etc.

Definition of ‘‘pugilistic encounter.”

Train robberies in Territories, etc.
§ 323.
324.
325.
326.
327.
328.
329.
330.
334.

332.
333.
334.
335.
336.

337.
338.

339.
340.

341.
342.
343.

345.

TABLE OF CONTENTS. 35

CHAPTER FOURTEEN.

GENERAL AND SPECIAL PROVISIONS.

Punishment of death by hanging.

No conviction to work corruption of blood or forfeiture of estate.

Whipping and the pillory abolished:

Jurisdiction of State courts.

Pardoning power.

Indians committing certain crimes; how punished.

Crimes committed on Indian reservations in South Dakota.

Qualified verdicts in certain cases. e

Body of executed offender may be delivered to surgeon for dis-
section.

Who are principals.

Punishment of accessories.

Accessories to robbery or piracy.

Felonies and misdemeanors.

Murder and manslaughter; place where crime deemed to have
been committed.

Construction of certain words.

Omission of words “hard labor’ not to deprive court of power to
impose.

Arrangement and classification of sections.

Jurisdiction of circuit and district courts.

CHAPTER FIFTEEN.

REPEALING PROVISIONS.

Sections, acts, and parts of acts repealed.
Accrued rights, etc., not affected.
Prosecutions and punishments.

Acts of limitation.

Date this act shall be effective.
FEDERAL CRIMINAL LAW

CHAPTER I.

THE UNITED STATES CONSTITUTION.

The U. S. Constitution—Supreme Law.
Arts. V, VII, III, I.
Source of Federal Law.
Republican Guaranties.
Infamous Crimes.
. Felonies—misdemeanors.
Jeopardy.
. Identity of offense must be shown.
. Witness against self.
7a. Witness against self—continued.
8. Art. VI of Constitution as bearing on trial by Jury; Copy of In-
dictment and Confronting by Witnesses.
9. Federal Courts controlled by Federal Statute only.

»

NDOAT PWN

§ 1. The United States Constitution — Supreme
Law.—The Constitution of the United States provides in
Section 2 of Article VI., that, ““The Constitution and the
laws of the United States which shall be made in pursuance
thereof...... shall be the supreme law of the land; the judges
in every state shall be bound thereby, anything in the Con-
stitution or laws of any state to the contrary notwithstand-
ing.”

§ 2. Article V. of the Amendments to the Constitution
provides:

“No person shall be held to answer for a capital or other-
wise infamous crime, unless on a presentment or indict-
ment 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.”

37
38 THE UNITED STATES CONSTITUTION

Article VI. of the Amendments provides:

“Tn all criminal prosecutions, the accused shall enjoy the
right to a speedy and public trial, by an impartial jury of the
state and district wherein the crime shall have been com-
mitted, which district shall have been previously ascertained
by law, and be informed of the nature and cause of the ac-
cusation; 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 specifically
to establish naturalization laws, uniform bankrupt laws, to
coin money, to establish post-offices and post-roads, to pro-
mote the progress of science and useful arts, and to make all
laws necessary and proper for carrying into execution any of
the powers vested by the Constitution 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 regula-
tions as will conserve the liberties of the individual 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 necesary to
promote the general welfare of the government is sufficient,
when delegated by the people, for the foundation of a code,
by the enforcement of which the liberty, property, and life of
individuals is taken through the process of the Courts.

§ 4. There are certain well known guarantees of our re-
publican form of government that are in the Constitution,
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., Para-
graph 2.)

(2) No bill of attainder or ex post facto law shall be passed.
(Sec. 9, Art. I., Par. 3.)
THE UNITED STATES CONSTITUTION 39

(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 committed; but
when not committed within any state, the trial shall be at
such place or places as the Congress may be law have direc-
ted. (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 punishment of
treason, but no attainder of treason shall work corruption of
blood or forfeiture, except during the life of the person at-
tained. (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 execu-
tive 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 persons,
houses, papers, and effects, against unreasonable searches
and seizures shall not be violated; and no warrants 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. (Amendment IV.) Amend-
ment V. guarantees that no person shall be held to ans:ver
unless upon presentment or by indictment, and that no
person shall be twice put in jeopardy of life or limb, nor com-
pelled in any criminal case to be a witness against him-
self, nor be deprived of life, liberty, or property, without due
process of law; and Amendment VI. guarantees speedy tria!
in the proper jurisdiction, that he shall be confronted with
the witnesses, be represented by counsel, and himself, en-
titled to process for witnesses.

(7) Amendment VIII. provides excessive bail shall not be
required, nor excessive fines imposed, nor cruel and unusual
punishment inflicted.

§ 5. Infamous Crimes as Meant in Art. V. of Con-
stitution.—IJn re Classen, 140 United States, 205, is the
40 THE UNITED STATES CONSTITUTION

ranking Supreme Court decision as to what is an infamous
crime, and that case holds that a crime which is punishable
by imprisonment in a state prison or a state penitentiary, 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 im-
poses. See also Fitzpatrick vs. United Sattes, 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 R. I., 83; United States
vs. Wynn, 9 Fed., 894; ex parte Wilson, 114 United States,
423; Mackin vs. United States, 117 U. S., 351; ex parte
McClusky, 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 imprison-

ment 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 offenses
committed against the provisions of Chapter 7, title Crimes,
which are not infamous, may be prosecuted either by in-
dictment or by information filed by a district attorney.
It was held in U. S. v. Wells Co., 186 Fed. 248, that a prose-
cution for a violation of the Food & Drugs Act, Section 2, 34
Stats. L. 768, for shipping adulterated food, wherein, upon
conviction, a fine not exceeding $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 dis-
cretion of the Court, could be begun by information for the
reason that the offense charged was not a felony in that a
defendant who may not be imprisoned in a pentientiary for
more than one year, has not committed a felonious offense.

All offenses, therefore, which may not receive punishment
in excess of one year, are misdemeanors and no convicted
defendant may be sent to a penitentiary unless his punish-
ment exceeds one year.

§ 6. Jeopardy.—Each American citizen, owing allegi-
ance to two governments, state and national, is the bene-
THE UNITED STATES CONSTITUTION 41

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 under the laws of
either is nq impediment or safeguard to prosecution from and
by the other. One who sells whiskey 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 jeop-
ardy clause in the Federal Constitution is not a limitation
upon any state government, but I do not understand such
holding to mean that if one were put in jeopardy twice by the
state machinery, that he would thereby be precluded from
raising the question. While the jeopardy clause in the Fed-
eral Constitution was doubtless intended to relate to trials
in the Federal courts, I am sure that the constitutional guar-
antee could be successfully relied upon by a citizen of a state,
if the effort were made to place him in jeopardy twice by the
state government.

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 Federal,
261.

§ 6a. Identity of Offense Must be Shown.—Louie
vs. U. S., 218, Fed. 36.

§ 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. Itis 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, 146 Federal, 92;
in re Briggs, 135 N. C., 122; U.S. vs. Price, 163 F., 904.
42 THE UNITED STATES CONSTITUTION

There is nothing more barbarous than to compel dis-
closures which will degrade and convict the person so com-
pelled. Voluntary appearance no violation or deprivation of
constitutional guarantee, Pendleton vs. U. S. 216 U. S. 305.
See also sec. 20.

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, showing the ex-
tent of the doctrine and the care with which the Courts have
preserved it, is McKnight vs. the United States, 115 Fed-
eral, 981. In that case, the Circuit Court of Appeals for the
Sixth Circuit condemned as unconstitutional a demand by
the District Attorney of the defendant for the original of a
paper in evidence.

As to immunity from prosecution because of testimony be-
fore Grand Jury, see U. S. vs. Heike, 175 Fed., 852. When
such is plead in bar burden is on the defendant, for discus-
sion 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 originally
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 him-
self 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 con-
cerning a certain written statement of his assets and lia-
bilities, on the ground that it might tend to incriminate
him, and he also refused to produce his books and made oath
THE UNITED STATES CONSTITUTION 43

that the books contained evidence that might tend to crim-
inate 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 in-
fringed his Constitutional rights, it might be true that the
provisions intended to save them would be inadequate and
nothing short of statutory immunity would suffice. But no
Constitutional rights are touched. The question is not of
testimony, but of surrender—not of compelling the bank-
rupt to be a witness against himself in a criminal case, pres-
ent or future, but of compelling him to yield possession of
property that he no longer is entitled to keep. If a trustee
had been appointed, the title to the books would have vested
in him by the express terms of Section 70 and the bank-
rupt 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 enforce possession ad
interum 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 prose-
cution, but the decision does not lessen in any degree the
protection of the amendments of the Constitution 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. v. Rhodes, 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 incriminate him. Boyd
v. U.S. 116 U. S. 616. And it is held that a bankrupt, as
44 THE UNITED STATES CONSTITUTION

well as any other person, is entitled to the protection of such
Constitutional provision. Jn re Canter & Cohen, 117 Fed.
356; in re Dow’s Estate, 105 Fed. 889. But evidence pro-
posed 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 re-
ferred to, as well as by that of the bankrupt law. Jn re
Harris, 164 Fed. 292.

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 ex-
amined under it. The Constitutional guaranty of the fifth
amendment does not deprive the law-making authority
of the power to compel the giving of testimony, even though
the testimony, when given, may serve to incriminate 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 Sta-
tutes or of the Bankruptcy Act of 1898. The provisions in
the Bankruptcy Act compelling testimony do not confer an
immunity wider than that conferred by the Constitution.
Glickstein v. 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 examination 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 testimony was not voluntary.

To the same effect is the decision in Dreier v. U. S. 221
U. S. 394, which was a contempt proceeding to require Dreier
to produce certain books of a corporation which were in his
THE UNITED STATES CONSTITUTION 45

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 fact that they were the documents
of the corporation in his custody and not his private papers,
he was under obligation to produce them when called for by
the proper process. See also Wilson v. U. S. 221 U. S. 361.
Hale v. Henkel, 201 U. 8. 43.

In Cameron vy. 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 perjury 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 intelligi-
ble.

In Powers v. 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 ad-
missibility 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 understandingly, to there-
after make a motion to exclude his testimony by way of a
privilege under the fifth amendment, 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 in-
criminating effect. Burdick v. U. S. 236 U. S. 79 over-
ruling U. S. v. Burdick, 211 F. 493.

Interstate Commerce Commission has power to compel
attendance and testimony of witnesses, and witness has im-
munity under Act February 11, 1893, even though govern-
ment does not inquire of him whether he claims privilege.
This question raised on demurrer, U. S. v. Skinner, 218
F. 871.

§ 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
46 THE UNITED STATES CONSTITUTION

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 de-
fendant ample protection 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. Martindale, 146 Federal, 291; United States vs. Green,
136 Federal, 641; Fitzpartick 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 excep-
tions 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 de-
ceased witness who was sworn upon a former trial, and the
testimony 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; Robertson vs. Bald-
win, 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 defendants
when such defendants make affidavit in accordance there-
with, but a rule of the Court limiting such witnesses to
four is not unreasonable.

§ 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 procedure in the Federal
Courts, do not apply to any extent in the trial of Federal
criminal law. It is entirely immaterial what the state
statutes provide with reference to procedure in criminal
cases, so far as the Federal Courts are concerned. The
Federal statutes alone control in criminal matters. In
THE UNITED STATES CONSTITUTION 47

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 line 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 trials at common law and in equity and admiralty,’ has
no application to criminal trials; and, therefore, the com-
petency 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 con-
trolled 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; Simmons 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.
CHAPTER II.

GENERAL PROVISIONS APPLICABLE TO THE PRACTICE.

§ 10.
10a.
11.
lla.

11b.

11c.
12.
13.
13a.

13b.

13c.

13d.

13e.
14.

14a.
14b.

14c.
15.

15a.

16.

16a.
16b.

17.

17a.

Judicial Code and the Courts.
Trial—public.

U. S. Commissioners.

Contempts.

Contempt Defined.

Contempt pendente lite.

Prosecution Begun by Indictment.

Grand Jury and Indictment.

Grand Jury and Indictment—Continued.
Copy of the Indictment.

Evidence before Grand Jury.

Motion to Quash Indictment or Other Dilatory Plea.
Information.

Preliminary Proceedings.

Warrant to Issue—When.

Question of Indictment on Removal.
Arraignment.

Bail Bond—Recognizance—Action Thereon.
Bail During Trial.

Challenges.

Consolidation of Indictments.
Impeachment of Verdict by Juror.
Indictment and Return of Same.
Endorsement on Indictments.
Consolidation of Indictments.

Question of Duplicity in Indictment.
Confessions.

. Confessions—Continued.

Admissibility of Documentary Evidence Secured Illegally.

. Method for Recovery of Illegally Secured Evidence.
. Production of Documents.

Comments or Improper Argument of District Attorney.

. Procedure When Improper Argument or Remarks are Made.

Prosecuting Officer in Grand Jury Room; Limits of his Expression.
Jury—Right of—Waiver—Necessity for Full Number—Illegal to
Try with Eleven.

. Comments by the Court.

Care of Jury—Moral Weight of Verdict; Legal Weight of Verdict;
Newspapers with Jury—Attempts to Influence Verdict.

. Setting Aside Verdict.

Evidence of Good Character—Charge on Presumption Thereof.

48
GENERAL PROVISIONS APPLICABLE TO THE PRACTICE 49

§ 26a. Good Character Becomes a Fact.

26b. Charge on, Refused When.

26c. Proof of Other Offense.

27. Instructions of the Court, whether Written or Oral, Special
Instructions.

27a. Exception to Charge after Jury Retired.

28. Opinion of Court—How Guarded.

28a. The Court not 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.

32. Sentence and Correction Thereof.

32a. Single Sentence, What Is.

33. No Authority to Suspend Sentence.

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; Wheth-
er May be Corrected, and How.

34a. Sentence not Absolutely Void; Resentencing.

35. Remission of Penalty on Forfeited Recognizance.

35a. Fine Abated by Death.

36. Bail After Affirmance.

36a. Bail Matter of Discretion and Matter of Right, When.

36b. Voluntary Giving of Bond no Defense to Surety Liability.

37. Severance—Separate Trials—Discretion of Court.

38. Habeas Corpus—Conclusions of Law Therein Instead of State-
ment of Facts.

38a. Habeas Corpus not to be used as Writ of 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 Sec-
tion 860; Duces Tecum Basis of.

40. Improper Person in Grand Jury Room.

40a. Hearsay Testimony Before Grand Jury—Stenographer Before
Grand Jury.

41. Private Prosecutor Unknown in Federal Courts.

42. Proof of Witness’s Former Conviction.

§ 10. Judicial Code and the Counts.—Article 3 of
the Constitution of the United States provides in substance
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 informations may be lodged and tried,
namely, the district courts. Circuit courts were abolished
by the Act of March 3, 1911, which Act enlarged the juris-

4
50 GENERAL PROVISIONS APPLICABLE TO THE PRACTICE

diction of the district courts, re-enacted the provisions relat-
ing to the Supreme Court, Circuit Courts of Appeals, and
Court of Claims, and embraced the enactments establishing
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 conferred on the district
courts up to January 1, 1912, is 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 the “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.

§ 11. United States Commissioners. — The present
United States Commissioners, that correspond in a general
way to magistrates, justices of the peace, and other state
examining officers, were, under the old law, called Com-
missioners of the Circuit Courts; but by the Act of May,
1896, all Circuit Court Commissioners were abolished, and
thereafter it became the duty of the District Court of each
judicial district in the United States to appoint such num-
ber 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 Revised 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 nora
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 defined 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 Commis-
sioners, under proper appointment from the Court.
GENERAL PROVISIONS APPLICABLE TO THE PRACTICE 51

In 100 Federal, page 950, in re Perkins, it was held that a
United States Commissioner cannot punish for contempt, 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 dis-
obedience to his process or authority, the Commissioner prop-
erly refers such disobedience to the Court by whose authority
he exists, which Court pursues the proper methods for con-
tempt 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
Commissioners 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 authority and
imposing certain duties on them, especially confer the same.

§ lla. 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 pun-
ishing contempts before United States Commissioners 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 committed in its presence.
This power is inherent and is a corollary of authority it-
self. Just what outside acts amount to a contempt and just
how far the courts will go in enforcing obedience is an
interesting field and not quite so well measured. For in-
stance 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 sub-
poena of the federal grand jury, books and papers of a cor-
poration left with him for safe-keeping by aclient 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 ef-
fect 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
52 GENERAL PROVISIONS APPLICABLE TO THE PRACTICE

and this though there was no pending charge before the grand
jury against the corporation or any of its officers or stock-
holders. This case was a writ of error from a judgment by
the lower court committing the offending witness to im-
prisonment until he should conform to the requirements of
the subpoena and the above opinion 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 contempt pro-
ceeding, although instituted in civil form by an order made
in a pending suit directing the issuance of an 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 there-
in. He also says that the common law rule that one charged
with contempt may purge himself and be entitled to a dis-
charge by the filing of a sworn answer denying the contempt,
is not recognized by the federal courts because they leave the
question to be determined by the proofs on the hearing.

In the provision of Revised Statute § 725 and Judicial
Code § 268 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 com-
mitted so near any point of distance to the place of hold-
ing 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 misbehavior the natural
tendency and effect of which are to interfere with the ad-
ministration 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
contempt punishable by the court under Judicial Code
§ 268.

In Kirk v. U. 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 expected
GENERAL PROVISIONS APPLICABLE TO THE PRACTICE 53

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.

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 case being tried in the district
court, such assault having been made because of the argu-
ment 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 interefered with and that it had jurisdic-
tion 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 pun-
ishable as a criminal contempt and that contempt proceed-
ings 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 said courts ahall have power to impose and adminis-
ter 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 punish 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 Colum-
bia, punishing for contempt, it may grant a writ of certiorari
to review the same. In this case the court asked the interest-
54 GENERAL PROVISIONS APPLICABLE TO THE PRACTICE

ing question as to whether an indictment will lie for a con-
tempt of the court of the United States and left it unan-
swered. The Gompers case will be recalled as the case
originating from the Buck stove boycott and grew immediate-
ly out of the publication of an issue of a labor paper.

Section 1044 of the Revised Statutes provides that no
person shall be prosecuted for an offense, not capital, unless
the indictment is found or information instituted within
three years after the commission of the offense and the Su-
preme Court held in the Gompers case that this provision of
limitation applied to acts of contempt that were not com-
mitted 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 summary 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 uncer-
tainty 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. U.S. v. Sweeney,
95 Fed. 434; People v. Kipley, 171 Ill. 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.

-§ 11d. Contempt Defined.—The act of October 15,
1914, on trade unions and combinations and trusts, found at
page 128 of the Federal Statutes Annotated Supplement, of
the 63rd Congress, in § 21 provides:

“That any person who shall wilfully disobey any lawful
writ, process, order, rule, decree, or command of any dis-
trict 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 of-
fense under any statute of the United States, or under the
laws of any state in which the act was committed shall be
ene against for his said contempt as hereinafter pro-
vided.
GENERAL PROVISIONS APPLICABLE TO THE PRACTICE 99

Section 22 provides the procedure for such trials and pun-
ishment, 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:

“That nothing herein contained shall be construed to re-
late to contempts committed in the presence of the court,
or so near thereto as to obstruct the administration of jus-
tice, nor to contempts committed in disobedience of any law-
ful writ, process, order, rule, decree, or command 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.

§ lle. Contempt Pendente Lite.—A persisting in
perjury or a continued failure to comply with an order of the
court, are contempts that may be prosecuted by a motion
filed by the prosecuting officer or upon the court’s own mo-
tion. In United States v. Appel, 211 Fed. 495, the court
held that it had power to punish as a criminal contempt per-
sistent perjury which blocks the inquiry before it, upon mo-
tion 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. Ans-
wers 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 contempt 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, pun-
ishable as such, does not prevent it from also constituting a
contempt punishable under Revised Statutes 725, which is
56 GENERAL PROVISIONS APPLICABLE TO THE PRACTICE

now Section 268 of the Judicial Code. See, also, for bank-
ruptcy contempts, U. S. v. Henkel, 185 Fed. 553.

§ 12. Prosecution Begun by Indictment.—While
there remain some few statutes that impose punishments
sufficiently light to permit prosecution to be begun by in-
formation, most prosecutions must be begun by indictment.
See also § 5a.

§ 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 punishable 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 be-
fore it can be legally returned. Section 1021 R.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 immedi-
ately or for a day fixed from the body of the district, and not
from the bystanders, a sufficient number of persons to com-
plete 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 perform
this service. It is not legal to summon thirty men to serve
on a grand jury and then to cull therefrom twenty-three for
actual service. U.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 stand-
ing rule of the court provided that an alphabetical list of
those present should be made and of such list the first twen-
ty-three should compose the grand jury, it was legally con-
stituted under the present statutes.

Judge McDowell, in reasoning his conclusions to support
the last decision, said “The first objection to summoning
more than twenty-three veniremen is, of course, the seem-
ing difficulty in fairly selecting those who are to serve. The
rule of court above-mentioned certainly wholly obviates this
GENERAL PROVISIONS APPLICABLE TO THE PRACTICE 57

objection. This rule being followed, it is a matter of pure
chance. There is no room for even any suspicion of unfair-
ness 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 requirement, Section 808 R. S.; Section
282 Judicial Code, that grand juries shall not exceed twen-
ty-three members. There is certainly in the statute no ex-
press 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 marshall to
summon talesmen from the body of the district.

It is not error for the court to instruct the marshal to sum-
mon 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 designating
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 U. S. Supreme Court,
226 U.S. 1.

Under the authority of Section 802 R. 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 in-
cur 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 names
were first called were improperly excused, and their places
filled by persons whose names were thereafter 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
58 GENERAL PROVISIONS APPLICABLE TO THE PRACTICE

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 number 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 in-
dictment 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 answered the questions of the Cir-
cuit 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 fol-
lowed was the mode prescribed by the laws of North Carolina,
and also 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 Re-
vised 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 in-
dictment to be presented by 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 returns
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 Procedure, 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 substance which can-
not be disregarded without prejudice to the accused and is not
GENERAL PROVISIONS APPLICABLE TO THE PRACTICE 59

a mere defect of form such as Section 1025 R. S. requires to
be disregarded and therefore an indictment was vitiated
by an order for the drawing of thirty-six names for the forma-
tion of a grand jury, which permitted the marshal to summon
twenty-three persons to be selected by him from the thirty-
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 per-
mit a defendant or his witnesses to present their side of a
question which is being investigated, yet the careful prose-
cutor, 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 punish-
ment, 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 withdarw to sit and re-
ceive indictments, which are preferred to them in the name
of the King, but at the suit of any private prosecutor; and
they are only to hear evidence on behalf of the prosecution;
for the finding of an indictment is only in the nature of an in-
quiry or accusation which is afterwards to be tried and de-
termined; 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 thor-
oughly 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 op-
pressive purposes.

Mr. Justice Fields, speaking for the Supreme Court of the
United States in 2 Sawyer, 668, observed in substance that
the grand jury, while originally for the convenience of the
60 GENERAL PROVISIONS APPLICABLE TO THE PRACTICE

Crown, under our institutions should be the protector of
the citizen.

One has not, however, as a matter of law, the right to ap-
pear and testify before a grand jury which is investigating
a case against him. U.S. vs. Bolles, 209 Fed. 682.

§ 13b. Copy of the Indictment.—A copy of the in-
dictment is not furnished as a matter of course to defendants.
When a prosecution is for treason, however, or other capital
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 accordance with
Section 1033. In other cases, however, copy of the indict-
ment is unnecessary. Balliet vs. U. S. 129 Fed. 689; Jones
vs. U. S. 162 Fed. 417; Ball vs. U. 8.147 Fed. 32; U. S. vs. Van
Duzee, 140 U. S: 173. In a capital case this provision ap-
plies 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 evi-
dence such as is legitimate and proper before a petit jury.
20 Cyc. 1346; U.S. vs. Kilpatrick, 16 Fed. 765, U. S. vs. Reed,
Fed. Cas. No. 16134. Thus the report of an assistant at-
torney general would not be competent legal evidence in a
trial upon an indictment charging use of the mails in execu-
tion 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 evi-
dence before a grand jury to determine its sufficiency or
whether incompetent evidence was received, unless the case
was an extreme one and unless it was to prevent-a clear in-
GENERAL PROVISIONS APPLICABLE TO THE PRACTICE 61

justice or an abuse of judicial process. This case also held
that a “‘presentment”’ is an action made by grand jurors upon
personal knowledge or observance of the facts or upon the
testimony of witnesses. In the case of Hillman vs. U. S.,
Circuit Judge Gilbert, speaking for the Court of Appeals for
the Ninth Circuit, in 192 Fed. 264, said that pleas in abate-
ment are to be strictly construed and that such a plea to an
indictment that books containing incriminating evidence
were wrongfully 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 before the
grand jury, is no ground for abating the indictment.

§ 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 pre-
senting such a plea may be fatal to him; and in the present-
ment of such a plea there must be specifically set out the
causes and particulars 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 injury 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 information,
it will be well to call attention to the fact that the Con-
stitution of the United States, in its fourth amendment,
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, ina
prosecution against a corporation for the imposition of a
fine or against a firm, for a fine under the Pure Food Act, for
62 GENERAL PROVISIONS APPLICABLE TO THE PRACTICE

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 in-
variably 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 otherwise infamous
crime, unless on a presentment or indictment of a grand jury,
authoritively decided the meaning to be given to the word
“infamous” and that meaning is understood to be a crime
punishable by imprisonment for a term of years in a peniten-
tiary. Since, however, the adoption of the new code, there can
be no trouble with reference to the meaning of this term, be-
cause the code specifically defines the word ‘infamous’
or ‘‘felony” to mean such crimes as are or may be punishable
by imprisonment in the penitentiary for more than one year.

§ 14. Preliminary Proceedings.—We have heretofore
noticed the provisions relating to the appointment of United
States Commissioners. If warrant is secured prior to indict-
ment, such warrant is issued under the hand and seal of the
United States Commissioner, and the offender is brought be-
fore him for preliminary hearing, and is entitled to make his
bail before that officer. The general authority for such pro-
cedure is found in Section 1014. If one be arrested in a dis-
trict 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 appear-
ance before the proper Court of the proper district. If the
prisoner cannot make the bail, application is made to the Dis-
trict Judge for a warrant of removal, under Section 1029.

The latest authority seems to be that upon proper applica-
tion, the District Court may inquire into the validity of the
indictment, so far as the jurisdiction is concerned, before or-
dering the defendant moved to the district in which the in-
dictment was found. In United States vs. Smith, 173 Fed-
eral, this doctrine was announced, and the Court refused to
remove the publisher of a newspaper in Indianapolis to the
District of Columbia for trial. To the same effect is Findley
vs. Treat, 205 U. S., 20; also 131 Fed., 968; U. S. vs. Green,
GENERAL PROVISIONS APPLICABLE TO THE PRACTICE 63

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. Prob-
able cause is the only question to be inquired into when re-
moval on indictment is asked. Jn re Quinn, 176 F., 1020.

§ 14a. Warrant to Issue—When?—We have hereto=
fore spoken briefly of amendment 4 to 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 supported by
oath or affirmation.”” As the government grows larger and
stronger and the people are further removed from their rep-
resentatives 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 should never be the arresting of one in his
right to walk where he pleases unless the Constitutional pro-
visions authorizing 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 inexpen-
sive it might be to ignore this provision of the Constitution, 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 pro-
vision of the Constitution is complied with when an infor-
mation setting forth on information and belief the facts
claimed to exist, is erroneous and such an information is not
supported by ‘oath or affirmation.” A court will not author-
ize the issuance of a warrant on an information made on the
information and belief of the United States District At-
torney, but it must be supported by proof establishing prob-
able 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. Bau-
mert, 179 Fed. 735.

§ 145. 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
64 GENERAL PROVISIONS APPLICABLE TO THE PRACTICE

questioned, when warrant will be refused. In U. S. vs.
Ruroede, 220 Fed. 210, it was held preliminary 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. Commissioner has no
authority to issue warrant of removal. Hastings vs. Murchie,
219 Fed. 83.

§ 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 re-
versible 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 ar-
raignment was essential to a legal trial and that in a federal
court no valid trial could be held without the requisite ar-
raignment and plea and that such must be shown by the re-
cord of conviction. Johnson vs. U. S., 225, U.S. 405.

In obedience to the popular demand for the effacement of
as many technicalities in our court procedure as possible,
the Supreme Court in Garland v. State, 232 U. S. 642, over-
ruled 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 accused and said that technical ob-
jections 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 formali-
ties, where the rights of the accused have not been prejudiced.
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
GENERAL PROVISIONS APPLICABLE TO THE PRACTICE 65

the state court as the difference in codes and practice
will permit. Jn re Belknap, 96 Fed., 614; U. S. vs.
Hunt, 166 U. S., 1063; U. S. vs. Lois, 149 Fed., 277.
In United States 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 sufficiency
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 informa-
tion charge no offense, is good, and may be enforced. The
United States may enforce a forfeited bail bond of recogni-
zance 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.
Marrin, the Court held that a defendant who goes where he
can be arrested, and thus causes a breach of his bond, ren-
ders his sureties liable.

§ 15a. Bail During Trial.—Section 1015 of the Re-
vised Statutes, which provides that bail shall be admitted
upon all arrests for offenses not punishable by death, does
not entitle the defendant, as a matter of right, to bail dur-
ing 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 case, nor will bail be al-
lowed 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 commenced.

In Texas there is a state statute which gives the defend-
ant 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 bring against the
bondsman for a forfeited recognizance. The bondsman could
not claim in the face of that statute that their obligation had

5
66 GENERAL PROVISIONS APPLICABLE TO THE PRACTICE

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.

§ 16. Challenges.—Section 819 of the Revised Statutes
allows the defendant twenty challenges, and the United
States five peremptory challenges, when the offense is treason
or capital. On the trial of any other felony, the defendant is
entitled to ten; and the United States to three 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 mis-
demeanors, and it is now an easy matter to determine just
how many challenges the defendant is entitled to. If, how-
ever, there be more than one defendant, and the trial is had
without severance, the defense will be allowed no more chal-
lenges than if there were but one defendant on trial, R. S.
819.

Challenges Under the New Code.—Heike vs. U. S.,
192 Fed. 101. After consolidation of indictments, see
Emanuel vs. U. S8., 196 Fed. 317.

In a note to Jeff Harrison vs. United States, 163 U. S.,
140, as reported in the 41 Lawyers Reports Annotated, at
page 104, is a very valuable compilation of the decisions in-
volving the following points:

As to trial by jury, how affected by Seventh Amendment
to the Constitution, New York Supreme Court Justices 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 causes of challenges of jurors and their qualifications,
Clinton vs. Englebrecht, 80 U. S., 449, 13 Wallace; 20 Law
Ed., 659, and the note.

As to discharge or withdrawal of jurors before verdict, ef-
fect of, United States vs. Perez, 9 Wheat., 578; Vol. 6, Law
Ed., 165. ’
GENERAL PROVISIONS APPLICABLE TO THE PRACTICE 67

As to impeachment of verdict byj urors; affidavit of parties
or third persons; affidavits of jury to sustain verdict Doss vs.
Tyack, 14 Howard, 296; 14 Law Ed., 428, and note there-
under.

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
Federal 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 was the
holding in the National bank prosecution of Keltenbach vs.
U.S. 202 Fed. 377, and after such consolidation the former in-
dictments becoming mere counts in the last indictment, the
defendant is entitled to but ten challenges because he is now
on trial for but one indictment. Keltenbach vs. U. S. 202
Fed. 377.

§ 165. 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 dis-
turb the result arrived at by himself and his fellows.

In one or two of the states such practice is permitted,
but the rule in the United States courts is against such pro-
cedure. 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.—tThe indict-
ment should always be returned into open Court by the en-
tire grand jury. The best practice is for the grand jury to be
polled when they report an indictment. Of couse, there must
be at least sixteen present when indictments 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 mean-
ing of the Constitution. I am sure this opinion states the law.
68 GENERAL PROVISIONS APPLICABLE TO THE PRACTICE

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 differ-
ently, but the Reingar case, cited supra, is undoubtedly the
law. See also Section 13.

§ 17a. Endorsements on Indictments.—In the case of
Williams against the United States, 168 U. S., 382, the Su-
preme Court held that endorsements on the margin of an in-
dictment, referring to certain statutes which do not support
it, although they may have been erroneously supposed 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 fol-
lows:

“It is said that these indictments were not returned under
that statute [5481], 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 extortion committed by Chinese In-
spector under color of his office. It is wholly immaterial
what statute was in the mind of the District Attorney when
he drew the indictment, if the charges made are embraced by
some statute in force. The endorsement on the margin of
the indictment 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 suffi-
cient to sustain it, although the representative 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 suffi-
cient.

It is entirely immaterial what provisions the various states
may make with reference to the forms of indictment therein;
the Federal statutes control in the enforcement of the
Federal criminal law.

§ 18. Consolidation of Indictments.—By Section
1024 of the Revised Statutes, several charges against the
GENERAL PROVISIONS APPLICABLE TO THE PRACTICE 69

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 U. S., 388; Pointer vs. United
States, 151 U. S., 396; Logan vs. United States, 144 U. S.,
301. In the case of United States against Dietrich, 126 Fed.,
670, the doctrine is made clearer by being distinguished, and
the Court there holds two persons cannot be indicted in the
same count, one for giving, 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 authorities.
The inquiry in that case was, ‘“‘whether counts against five de-
fendants 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 another and distinct offense com-
mitted 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 in-
dictments in such a way that some of the defendants may be
tried at the same time with other defendants charged with
a crime different from that for which they all are tried.”
This decision, 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 consolidated and tried to-
gether without embarrasssing the accused in making his de-
fense.”’ 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
70 GENERAL PROVISIONS APPLICABLE TO THE PRACTICE

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.

§ 20. Confessions.—Because of the adoption by many
of the States of statutes which prescribe certain conditions
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 Amend-
ment to the Constitution and Section 860 of the 1878 Re-
vised Statutes, that bear upon such testimony, are as fol-
lows:

etias Nor shall any person be compelled, in any crim-
inal case, to be a witness against himself.”—Fifth Amend-
ment to the Constitution. :
“No pleading of a party, nor any discovery or evidence ob-
tained from a party or witness by means of a judicial pro-
ceeding in this or any foreign country, shall be given in evi-
‘ dence or in any manner used against him or his property or
estate in any court of the United States in any criminal pro-
ceedings, or for the enforcement of any penalty or forfeiture;
provided, that this section shall not exempt any party or
witness from prosecution and punishment for perjury com-
mitted in discovering or testifying, as aforesaid.”’—Section
860, 1878 Revised Statutes, U. S.

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 constitu-
tional protection was broader than Section 860, and in pass-
ing upon a prosecution for perjury, alleged to have been com-
mitted in a statement made before a Pension Examiner by an
ignorant person, such statement was excluded on the propo-
sition 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 constitutional 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, of a confession is
whether the same was free, voluntary, and without com-
GENERAL PROVISIONS APPLICABLE TO THE PRACTICE 71

pulsion or inducement of any kind. The fact that a confes-
sion was made while the party was under arrest is entirely
immaterial, but it devolves upon the prosecution to show that
the confession was voluntary. The authorities conflict
somewhat as to whether the Court or the jury shall deter-
mine this question. The better authority seems to be that
the Court shall determine it, because, manifestly, the admis-
sion of a confession to a jury, under the thought and instruc-
tion that it must determine, first, whether the same was
voluntary before they can give it consideration, would be
entirely inadequate to sufficiently safeguard the interest of
the defendant. 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 de-
tailed statements that show a confession to have been made,
for the reason that the admissibility of such confession 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 voluntary or not is to be determined by the
Court, and cites Ellis vs. State, 65 Miss., 44; 7 Am. 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 Procedure.

Underhill on Criminal Evidence, at page 161, paragraph
126, says that the premiminary question, Was the confes-
sion voluntary? bearing directly upon its competency as evi-
dence, must be, according to the majority of the cases, de-
cided 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 holding 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 pre-
liminary determination by the Court of this question, be-
fore permitting the confession to go to the jury.

In discussing the statement that the prosecution must show
that the confession is voluntary, Underhill, 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 volun-
tarily made, but that other authorities sustain, at least in the
absence of evidence to the contrary, the very reasonable
72 GENERAL PROVISIONS APPLICABLE TO THE PRACTICE

theory that a confession, like every act or utterance which is
the result of human agency, is presumed to have been volun-
tary until the contrary is shown. This latter view would
throw the burden of proving that the confession was in-
voluntary upon the accused; but whichever position is
right, the defendant is always entitled to show, by pre-
liminary evidence, that the confession was not voluntary,
and it is the duty of the Court, in determining the com-
petency 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; Rufer vs.
State, 25 Ohio, 464; State vs. Miller, 42 La., 1186; Sim-
mons vs. State, 61 Miss., 243; Commonwealth vs. Culver,
126 Mass., 464; State vs. Kinder, 96 Mo., 548, the refusal, be-
fore the confession was admitted, to allow counsel for the
prisoner to cross examine the witness 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 ob-
tained, were reversible error.

In Hopt vs. Utah, 110 U. S., 574, the Court said that, ‘“‘the
admissibility of such evidence (confessions) so largely de-
pends upon the special circumstances conected with the-
confession that it is difficult, if not impossible, to formulate a
rule that will comprehend all cases, as the question is neces-
sarily addressed, in the first instance, to the judge, and since
his discretion must be controlled by all attendant circum-
stances, the Courts have wisely forborne to mark with ab-
solute precision the limits of admission or exclusion.’ This
latter utterance, therefore, 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 explana-
tions 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 couse, finds its support in the
existence of extraneous facts which have been discovered
through the statements of the accused, or otherwise, and
GENERAL PROVISIONS APPLICABLE TO THE PRACTICE 73

such statements are, therefore, admissible, though made in-
voluntarily, or though made to conceal guilt, and a differ-
ent rule relates 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
Bram vs. United States, 168 U. S., 532, 42 Law 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
officer were placed in irons, and carried into port. The
prisoner Bram was taken before a detective at Halifax, who
searched him, and stripped him, and took what the bill of
exceptions called ‘“‘extraordinary 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 awkward 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 shoulders.’ 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 confession,
the Supreme Court of the United States reversed the judg-
ment of conviction, and granted a new trial. Compendiously
stated, the rulings upon the same, by that Court, were as fol-
lows: 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 prosecu-
tion 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
statement was voluntary and without inducement or com-
74 GENERAL PROVISIONS APPLICABLE TO THE PRACTICE

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 accused is un-
der arrest, in or out of prison, or is drawn out by his ques-
tions, does not necessarily render a confession involuntary,
but, as one of the circumstances, such imprisonment or in-
terrogation may be taken into account 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 Ap-
peals for the Eighth Circuit, to the protection of a defendant
from the use of a confession which was secured from him by a
Post office Inspector, who had advised the defendant that
he, the Inspector, had an absolutely 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.—lIt is not an element of
a voluntary confession under the federal authorities and un-
der 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.

Of course it will be borne in mind, as heretofore suggested,
that the court passes upon this preliminary inquiry before
submitting the testimony to the jury.

§ 21. Admissibility of Documentary Evidence Sec—
ured 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 citizen against illegal
searches and seizures, can be used in evidence against the
party from whom they were so secured. The case of Adams
GENERAL PROVISIONS APPLICABLE TO THE PRACTICE 70

vs. New York, 192 U. S., 586, 48 Law Ed., 577, by the Su-
preme Court, holds that the admissibility of documentary
evidence, tending to establish the guilt of an accused of the
offense charged, is not affected because it was secured in viola-
tion of the prohibition against unreasonable searches and
seizures, and the self-incrimination of an accused is not af-
fected by the introduction in evidence against him of cer-
tain private papers found in the execution of a search war-
rant, where he did not take the witness stand in his own be-
half, 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 parapher-
nalia statute of New York City, and the officers, armed with
a search warrant under that statute, 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 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 mentioned 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 of-
fered, or otherwise unlawfully obtained, this is no valid ob-
jection to their admissibility, if they are pertinent to the is-
sue. 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 pro-
cured in an irregular, or even in an illegal manner. A tres-
passer may testify to pertinent facts observed by him, or
may put in evidence pertinent articles or papers found by
him while trespassing. For the trespass, he may be held
responsible civilly, and perhaps criminally, but his testi-
mony 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 draw-
ings of armor-piercing projectiles submitted under orders of
secrecy and the possession of which was subsequently wrong-
fully obtained, but the court said that the illegality of the
method by which evidence has been obtained does not af-
76 GENERAL PROVISIONS APPLICABLE TO THE PRACTICE

fect its admissibility. See also Hartman vs. U. S., 168;
Fed. 30.

This doctrine has been approved and followed by the Fed-
deral Courts, even though the property unlawfully or ir-
regularly seized belonged to a third person, as was decided in
U. S. vs. McHie et al. 196, Fed. 586. In that case District
Judge Sanborn held that a Federal Court has power to im-
pound books and papers, although the property 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.

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 inadmis-
sible against the accused because unlawfully seized by the
authorities, where the search does not appear to have been
seriously resisted.

§ 2la. Method for Recovering Illegally Secured
Evidence.—A party may, upon the filing of a proper mo-
tion setting forth the facts, secure from the court in which
the cause is pending an order directing the prosecution to re-
turn to him such papers or evidence as was illegally se-
cured.

Certain inspectors having accompanied amarshal to servea
warrant on defendants, arresting them for misuse of the mails
in furtherance of a scheme to defraud, remained and searched
their office and seized their books, papers, letters and docu-
ments, removing the same to their office, whence they were or-
dered delivered to the clerk of the court and sealed. Upon this
state of facts, after a motion had been filed to have the pa-
pers returned, District 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 seiz-
ure, defendants were entitled to have the same returned to
them, though such documents might contain incriminatory
GENERAL PROVISIONS APPLICABLE TO THE PRACTICE 77

evidence which the district attorney desired to submit to
the grand jury and use against them.

When, however, there is an element of the voluntary sur-
render, no relief will be granted upon such an application,
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 incriminating papers,
made in the execution of a legal warrant, and their use as
evidence, may be justified, and a collateral 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 re-
tention of letters seized in violation of the protection given
by the Fourth Amendment 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 without any search warrant and in viola-
tion of the constitutional 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
evidence over his objections, prejudicial error is committed
and the judgment should be reversed.

§ 21b. Production of Documents.—The constitu-
tional guarantees protect the defendant in a criminal cause
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 actions at
law in Federal Courts is governed by the Statutes of the
United States, and under such statutes a court at law can-
not compel a party in an action to produce documents in ad-
vance of the trial for the inspection of the other party, cit-
ing Carpenter vs. Winn, 221; U. S. 533.
78 GENERAL PROVISIONS APPLICABLE TO THE PRACTICE

§ 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 legiti-
mate deductions from the law and the evidence. One of the
abuses of the modern practice is the proneness of the at-
torneys defending to express unbounded belief in the in-
nocence of their client, even to the staking of personal rep-
utation. Great censure also is due the prosecution for in-
temperate 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 lan-
guage of the prosecuting officer to the appellate court for re-
view. 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 defandant, a fair argu-
ment, devoid of personal opinions, and as free from pre-
judicial and inciting statements as fair discussion will per-
mit. In the case of Williams against the United States, 168
U. S., 382, the defendant was convicted of extortion in exact-
ing 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 before or after. The representative of
the government objected to this evidence, as irrelevant, say-
ing in open court, and presumably in the hearing of the jury:
“No doubt every Chinese woman who did not pay Will-
iams was sent back.”’ The Supreme Court said: ‘‘The ob-
servation made by the prosecuting attorney was, under the
circumstances, highly improper, and not having been with-
drawn, and the objections to it being overruled by the Court,
it tended to prejudice the rights of the accused to a fair and
impartial trial.”

In Hall against the United States, 150 U. S., 76, a judg-
ment 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 evidence, which
GENERAL PROVISIONS APPLICABLE TO THE PRACTICE 79

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 defendant had insisted that six
men could not return a verdict, nor could eleven; that it re-
quired twelve. The District Attorney, in answering that
argument, said in substance that it was true that six could
not return a verdict, 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 un-
lawful 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 embarrass
free discussion, so essential to proper administration 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 ver-
dict. We wish to follow established rules, and to avoid in-
troducing another element of uncertainty in the trial of
criminal cases by making a new precedent for the reversal
of judgments. The difficulty of drawing a line between
legitimate and improper 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 cor-
rect the probable effect of the argument by a subsequent
instruction, and because it does not appear affirmatively to
us that no injury was done to the defendants, we are con-
strained 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 argu-
ment upon the failure of the defendant to offer evidence 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.
80 GENERAL PROVISIONS APPLICABLE TO THE PRACTICE

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 Attorney
comments on failure of defendant to testify in his own be-
half. 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.”

§ 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 argument 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 prosecuting 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 excep-
tion by a proper bill. It is also a safe practice to request a
special charge governing 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; Rogers vs. U. S., 214;
Fed., 981; Carlisle 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 pre-
vent argument amounting only to a claim that the govern-
ment 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
GENERAL PROVISIONS APPLICABLE TO THE PRACTICE 81

where the district attorney in his opening argument said
that “‘Gillim’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 district attorney were improper; that he had no
right to make them; and the jury should not draw any un-
favorable conclusion or inference against defendant from
such remarks; that the law prohibited the assistant district
attorney from commenting as he had upon the defendant’s
conduct in not contradicting Gillim; that it was a gross im-
propriety 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 different words that they must
entirely disregard the improper comment. Upon such a
state of facts the Court of Appeals 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
caution 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 reason-
able doubt, and his failure to offer any testimony whatso-
ever 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, con-
cluded by saying, ““We cannot refrain, however, from say-
ing that counsel in their zeal to enforce obedience to the law
on the part of others, should not themselves grossly violate
it,’ which appendage to an affirming opinion seems to war-
rant us in saying that the court was extremely doubtful of
the correctness 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 no one shall be
made to testify against himself. When the prosecution is
permitted to remark that the defendant has not testified,

6
82 GENERAL PROVISIONS APPLICABLE TO THE PRACTICE

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 case, if .
there ever was a case, is one in which it is merited.” The
report does not show just what steps the defendant took to
shield himself from this improper attack, but the court
said, ““Admonitions of this character to a jury by a prose-
cuting officer of the government cannot 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 opinion 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 char-
acter which was not put in issue, and going beyond any evi-
dence 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 Bingham of the Circuit
Court of Appeals for the First Circuit, and amohg other
things, he said, ““What the district attorney said * * *
was an appeal to the passion and prejudice of the jury. Im-
mediately 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 be-
came the duty of the district attorney to withdraw the state-
ment 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 influence their
action. * * * The objectionable statement being al-
lowed to stand, defendant’s counsel followed it up with an
exception. The objection and exception 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
GENERAL PROVISIONS APPLICABLE TO THE PRACTICE 83

reference by the district attorney to the conviction of the
partner of the defendant, but refused to reverse. I assume
that the judges were so overwhelmed with the horror of the
facts that they could find no way for the jury to do any-
thing but convict and therefore found that there was no
prejudicial error, but the fact remains that the failure to re-
verse affords another comfort to the prosecuting officer whe
is regardless of the record or of the rights of the accused.

§ 23. District Attorney in Grand Jury Room.—
Having already noticed something of the latitude per-
mitted the District Attorney or prosecution in argument
before the trial jury, it will not be out of place to call atten-
tion 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 ex-
pects an indictment to be returned. In United States vs.
Wells, 163 Federal, 313, Judge Whitson reviews, at some con-
siderable length, authorities along this line, and from that
opinion may be deduced the following rules and limits:
The District Attorney has no right to participate 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 upon the persons under investigation; and while
the mere presence of the prosecutor during the taking of a
vote, through inadvertence, and without intending to in-
fluence 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.

§ 24. Jury.—The right of trial by jury is the most price-
less boon enjoyed by the people under any government.
Text-book writers, newspaper writers, politicians, and the-
orists may thunder as they will against the miscarriages of
justice from the jury box; the system is not only established
84 GENERAL PROVISIONS APPLICABLE TO THE PRACTICE

for all time, but is as necessary as a bill of rights. No judge,
however learned, no set of judges, however impartial can ap-
proximate the justice that is found and dispensed by the lay-
man 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 mo-
tives that actuate those who are permanently, or occasion-
ally, or unfortunately only once, charged with crime or of-
fense. The very people with whom the unfortunate walked,
and the very people who suffered or won as the unfortun-
ate suffered or won understand best the power that makes or
unmakes an intent of the human heart. That the Federal
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 addition 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 juris-
prudence and court history is due to the fact that the Ameri-
can 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 indicate,
‘by instructions or otherwise, his opinion upon a particular
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 Con-
stitution of the United States provides for trials by jury, as
do also the Amendments, 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 Dis-
GENERAL PROVISIONS APPLICABLE TO THE PRACTICE: 85

trict 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 mis-
demeanor. In Dickinson vs. United States, 159 Federal,
page 801, the Circuit Court of Appeals for the First Circuit
speaking through Judge Putnam, reviews 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 origin-
ally selected twelve becomes 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 defendant 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, because
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 Thomp-
son vs. Utah, 170 U. S., 343, has authoritatively deter-
mined 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 Section 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 opin-
ion, dissents, and in a well-reasoned and authority-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 to see that
there is a full panel, and if sickness or other unavoidable in-
terference causes the judge to excuse a member of a jury,
that the trial then be discontinued and begun all over again
before the regulation number. I have no doubt that a de-
86 GENERAL PROVISIONS APPLICABLE TO THE PRACTICE

fendant and his counsel 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 discussed 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 certi-
orari was dismissed without acting on the question involved.
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 sustained. 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 ina
criminal or civil case, provided he explained to the jury at
the same time that such opinion has no binding effect.
It is difficult indeed to understand how a court could ex-
press itself with reference to a particular fact, the existence,
force and effect of which is paramountly for the determina-
tion of the jury, under our system, without influencing or
affecting the jury.

In Adler vs. U. S., 182, Federal 464, the appellate court
held that the trial court could not cross examine witnesses in
a way that would communicate to the jury his opinion of the
defendant’s guilt, and in Sandals vs. U. S., 213, Federal
569, the appellate court held that certain observations by
the trial court could not be removed by a general charge
that the jury was the sole judge of the credibility of the wit-.
nesses. 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
GENERAL PROVISIONS APPLICABLE TO THE PRACTICE 87

opinion. See collated authorities in Young vs. Corrigan,
208, Federal 431, nor must the court be a mere presiding
officer, for his function is to ascertain the truth and speed
the progress of the trial, Kittenbach vs. U. S., 202, Federal
379, but there should be as little intrenchment 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 en-
tirely 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 displeased mind of the
court. It is not that the jury fears punishment at the hands
of the court, but the jury looks up to the court and be-
comes, as it were, worshipers at the shirne of the correct-
ness 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 experi-
ence has given them.

The court may express his opinion in his charge relative
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.

§ 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 considered as a right belong-
ing 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 persons, thereby making improper advances im-
possible and improbable, lends weight and force and purity
to its verdict, and thus tends to convince the most common
mind of the righteousness of the ultimate conclusion. It is
88 GENERAL PROVISIONS APPLICABLE TO THE PRACTICE

not alone necessary to avoid evil—the thoughtful man avoids
the appearance even thereof. Newspapers, letters, conversa-
tions 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 de-
fendant 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 testified that they were
not influenced by the newspaper statements, 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 newspaper. It is a safer plan to keep the papers from
the jury, and if prejudicial articles do come into the hands of
the jury and this fact be ascertained 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 the defend-
ant. 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 attempt made to in-
fluence their verdict. They were permitted 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 improperly influenced thereby.

§ 25a. Setting Aside Verdict.—See Section 16) 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 was 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
difference in the rule of evidence as adopted by the various
appellate Courts of the different states, respecting the ad-
mission of testimony as to the good character of the defend-
ant, the rule in the United States Courts, as outlined in the
GENERAL PROVISIONS APPLICABLE TO THE PRACTICE 89

case of Edgington vs. United States, 164 U. S., 361; 41
Law Ed., 467, is that evidence of a defendant’s general repu-
tation for truth and veracity is admissible 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 character, 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 wit-
nesses 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 ma-
terial 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 evidence of good
character could only be considered if the rest of the evi-
dence 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 con-
sider 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 reputa-
tion for good character, if it is relevant to the issue, would
alone create a reasonable doubt, although without it, the
other evidence would be convincing.”

§ 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 character of the ac-
cused is admissible on all criminal trials whether the other
evidence leaves the mind in doubt or not; and when estab-
lished, it becomes a fact in the case, to be considered with
all other facts in determining the final issue of guilt or in-
nocence. But in absence of evidence presumption can-
90 GENERAL PROVISIONS APPLICABLE TO THE PRACTICE

not 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.

§ 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 defend-
ant any crime not alleged either as foundation for a sep-
arate 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. Mitchell, 2 Dall., 348. The
same authority, at page 963, maintains that even where of-
fenses are of a like sort, evidence of one is not ordinarily ad-
missible 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 an-
other; 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 admissible.

The particular question under discussion is treated at some
length in Dyar vs. U. S., 186, Federal 620, by the Circuit
Court of Appeals for the Fifth Circuit, in which case the pros-
ecution was allowed to prove, over the defendant’s’ objec-
tion, that the defendant had been convicted and had served
a penitentiary sentence and that the defendant had also been
indicted in a third jurisdiction 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 dis-
GENERAL PROVISIONS APPLICABLE TO THE PRACTICE 91

cussion 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
judicially 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 then
proceeds: “Of course there are many instances in which evi-
dence of the commission of other offenses is necessarily ad-
missible. One instance, often referred to in the books, is
where the commission of one offense is a circumstance tend-
ing to show the commission of the offense for which the de-
fendant is on trial. The fact that the defendant charged
with homicide stole an axe or a gun with which the killing
was done; the stealing of the weapon, though a distinct of-
fense, 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 char-
acter as that which the defendant is charged with passing,
-in the case on trial, would be admissible to show guilty knowl-
edge or intent.” Register vs. U. S., 186, Federal 624.
Conviction reversed in Talliaferro vs. U. S. 213 Fed. p. 25,
because evidence of defendant’s house being an assignation
place was omitted when she was on trial for selling beer.

§ 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 in-
structions 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 separate functions is neither prac-
tice, pleading, nor a form nor mode of procedure within the
meaning of the statute, and a state statute regulating the
92 GENERAL PROVISIONS APPLICABLE TO THE PRACTICE

manner in which the Court shall charge the jury is not with-
in 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; Lin-
coln 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 favor-
able 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 crim-
inal trial to conduct the same as well as he can, in view of the
three systems of criminal jurisprudence, without any sug-
gestion whatever as to what he shall do in such an extraor-
dinary emergency, should he meet a question not regulated
by any one of the three systems.’’ At Common Law, it is
entirely within the discretion of the trial judge whether in-
structions to the jury shall be in writing; and in the absence
of statutes providing otherwise, the whole charge may be de-
livered 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. Rooks, 50 Federal, 898; Gulf
Ry. 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 glad-
ly charge the jury in writing. If special instructions be de-
sired, they must be requested in writing before the retire-
ment 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.

§ 27a. 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 retired.
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 objections after-
ward.
GENERAL PROVISIONS APPLICABLE TO THE PRACTICE 93

§ 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 juris-
dictions 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 Simmons vs. United States,
142 U. S., 148, the Court said: ‘‘It is so well settled by a long
series of decisions of this Court that the judge presiding at a
trial, civil or criminal, in any Court of the United States, is
authorized, whenever he thinks it will assist the jury in ar-
riving at a just conclusion, to express to them his opinion
upon the questions of fact, which he submits to their deter-
mination, 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; Love-
joy vs. United States, 128 U. S., 171.” These decisions have
been followed repeatedly. Sebeck vs. Plattseutsche, 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 qualified his statements, and in Breese vs.
United States, 106 Federal, 686, it was held that an expres-
sion 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 R. R. €o., 147 U. S., 480; Allis vs. United
States, 155 U. S., 123; Wiborg vs. United States, 163 U. S.,
556; Woodruff vs. U. S., 58 Federal, 767; Spurr vs. U. S.,
87 Federal, 708; Hart vs. U. S., 84 F., 799; Smith vs. U. S.,
157 F., 722.

§ 28a. 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 Mullen
vs. United States, 106 Federal, 892, in a decision by the Cir-
94 GENERAL PROVISIONS APPLICABLE TO THE PRACTICE

cuit 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 to be innocent, because the law presumed them to be
of 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 sub-
mit it calmly and impartially, and if the expression of an
opinion upon such evidence becomes a matter of duty, un-
der the circumstances of the particular case, great care
should be exercised that such expression should be so given
as not to mislead, and especially that it should not be one-
sided, and all deductions and theories not warranted by the
evidence should be studiously avoided. See also Hicks vs.
United States, 150 U. S., 442.

Were there testimony, therefore in the record, touching the
question of character, it would not be error for the judge to
assist the jury by such views as he entertained respecting
character, its formation and effect, provided he then leave
the jury free to decide the disputed matter of fact for them-
selves. 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 indictments
on which the trial was had, not guilty upon others, and which
reports a disagreement as to the remaining counts, is en-
tirely proper, and it is not error to receive such verdict and
GENERAL PROVISIONS APPLICABLE TO THE PRACTICE 95

to enter judgment thereon as to the counts which were finally
disposed of. Dolan vs. U. S., 133 F., 440.

§ 32. Sentence and the Correction Thereof.—Cer-
tain 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 Federal
prisoners upon the payment terms therein prescribed. Sec-
tion 5541 permits the Court to sentence the prisoner, if
the term be longer than a year, to either a jail or a peni-
tentiary. 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 peni-
tentiary.

There is no direct Federal statute exacting when convicted
prisoners shall be sentenced. The authority for the sen-
tence of a convict, therefore, under the Federal system, must
be found in the general proposition that the Federal Courts
are authorized to pronounce all decrees and judgments neces-
sary. Specific penal statutes, with fixed terms of punish-
ment, demand, therefore, sentence by the Court upon the
convicted person.

§ 32a. 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 de-
fendant on different counts in the same indictment, a single
sentence for the aggregate period and cited authorities to
support his position, distinguishing the doctrine 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 in-
hibited to them, and belonging to an entirely different branch
96 GENERAL PROVISIONS APPLICABLE TO THE PRACTICE

of the Government. The Judge, in administering the law, is
as surely bounden to society that all of its mandates shall be
correctly observed, as he is not to lay the weight of his finger
unjustly 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 temporarily suspend
its judgment for the purpose of hearing and determining
motions and other proceedings which may occur after ver-
dict, and which may be properly considered before judg-
ment, or for any other good reason, yet the suspension of a
judgment upon the good behavior of the prisoner, or for any
other reason that is not concerned with the case, is an ex-
ercise 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.”

§ 34. Correction of Sentence.—Under Section 5546
and its Amendment, as shown at page 111, First Volume
Supplement, the Attorney General of the United States
designates the particular Federal penitentiary to which pris-
oners from a given district shall be sentenced. These desig-
nations 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 ex-
ecuted or suffered, revise and vacate it, or change, correct, or
amend it in form or substance, or may modify, diminish, or
increase it within the limits allowed by law, and in fact may
render a new judgment, in accordance 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; Reynolds
vs. United States, 98 U. S., 145; in re Bonner, 151 U. S.,
242; Williams vs. U. S., 168 U. S., 382; ex parte Waterman,
GENERAL PROVISIONS APPLICABLE TO THE PRACTICE 97

33 Federal, 29; U. S. vs. Harmon, 68 Federal, 472; in re.
Groves, 117 Federal, 798.

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 pro-
nounce 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 thoroughly 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 jurisdiction over such motion after
the term expires at which the sentence was pronounced.
Chitty’s Criminal Law, 651; Indianapolis R. R. Co. vs.
Horst, 93 U. S., 291; Newcomb vs. Wood, 97 U. S., 581;
Belknap vs. U. S., 150 U. S., 588; Kingman vs. Western
Mfg. Co., 170 U. S., 675; Capital Traction Co. vs. Hof,
174 U. S., 1. Where, however, there is a local statute of the
state, by which a motion for a new trial in a criminal case is
justified, even though the term be ended at which the sen-
tence and judgment was passed, it seems to be an open ques-
tion as to just what course the Federal Courts would fol-
low. In Trafton vs. U. 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 in-
dicate that a sentence which is null and void may be cor-
rected at the same term in which it was entered, even though
the prisoner has been in prison thereunder. People vs. Dane,
81 Mich., 36; ex parte Gilmore, 71 California, 624; in re
Bonner, 151 U. S., 242; in re Christian, 82 Federal, 885.

While for some time it may have been considered doubt-
ful 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 authority and sound public
policy, that such action may be 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

7
98 GENERAL PROVISIONS APPLICABLE TO THE PRACTICE

States vs. Moss, 6 Howard, 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 convic-
tion 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 corpus,
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. Ballew vs. U. S. 160,
U. S. 195, affirms the Bonner case and takes action in har-
mony therewith.

§ 34a. Sentence not Absolutely Void; Resentencing.
—In Howard vs. Moyer, 206, Federal, 555, it was held that
one would not be released on a writ of habeas corpus merely
because the sentence was erroneous. In order to secure such
relief, the sentence must in fact be a nullity. 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 Cir-
cuit, held that one who is being restrained of his liberty for
many years by virtue of the judgment of a Federal 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 relief by a writ of error but failed
to apply for it until it 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
jurisdiction and therefore void. Stevens vs. McClaughry,
207, Federal, 18.
GENERAL PROVISIONS APPLICABLE TO THE PRACTICE 99

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 return 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. Mas-
sachusetts, 177 U. S., 155, nor to re-try him on a new in-
dictment after a prior indictment, conviction and sentence
have been set aside in a proceeding inerror. Ball vs. U.S.
163, U. S. 662.

The Government is not authorized to move for a modifi-
cation of judgment and sentence with respect to place of im-
prisonment in the absence of any of the contingencies cov-
ered by Section 5546, which provides that all persons con-
victed 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 neces-
sary. U.S. vs. Cane, 221, Federal, 299.

§ 35. Remission of Penalty on Forfeited Recogniz—
ance.—An application to a Federal Court which has entered
judgment on a forfeited recognizance in favor of the United
States, for a remission of the penalty for which such judg-
ment 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 de-
fault of the party,” is not a motion to vacate the judgment,
and may be entertained after the term at which the judg-
ment was entered. 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. U. S. 106, Federal, 623.

§ 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
100 GENERAL PROVISIONS APPLICABLE TO THE PRACTICE

court has no power to continue defendant’s bail, nor to ad-
mit him to new bail pending his application to the Supreme
Court for a writ of certiorari, but the Court may, for good
cause shown, defer the beginning of his sentence for a reas-
onable 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 mat-
ter of absolute right, both under the state and federal laws,
unless his enlargement on bail would be a menace to a com-
munity. Ex parte Thaw, 209, Federal, 954.

A Chinese person against whom an order of deportation
has been entered, is not entitled to be admitted to bail pend-
ing an appeal, as a matter of right, but admission 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, in in direct conflict with the
case above cited in 132nd Federal, for Judge Dodge holds that
the words of the Act requiring deportation 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.

§ 365. Voluntary Giving of Bond no Defense to
Sureties’ Liability.—In the case of U. S. vs. Lamar, 210,
Federal, 685, it was determined that even though the
accused voluntarily gave bond for his appearance, such con-
tract was binding and he, not having appeared a prelimin-
ary 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 mis-
demeanor and felony. It is generally presumed that persons
jointly indicted are to be tried jointly, but when, in a parti-
cular instance, this would work injustice to a party, the
‘
’ }
GENERAL PROVISIONS APPLICABLE TO THE PRACTICE 101
SN ce id

Court, under the Common Law, will permit a severance and
separate trials. Some of the States, by statute, authorize
and guarantee this as a right. In the Federal Courts, how-
ever, the rule is the Common Law rule stated above. The
application for severance may come from either the defend-
ant 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 trying to-
gether of joint defendants promotes convenience and jus-
tice; and unless the contrary appears, the trial will be joint.
If, however, there be antagonistic defenses, or important evi-
dence 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 testi-
mony would be prejudicial against one and incompetent
against another; or where there be a contention of one which
is not admissible against another—the Court may, in his
discretion, 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 United
States held, speaking through Justice Story, that,

‘‘Where two or more persons are jointly charged in the
same indictment 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 al-
lowed 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 defendants
moved that they be tried separately from Ball, a co-de-
fendant, alleging as a cause for such motion that the Gov-
ernment 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 resting in the sound discretion
of the Court below; and it not appearing that there was any
abuse of that discretion in ordering the three defendants
tried together, or that the Court did not duly limit the effect
102 GENERAL PROVISIONS APPLICABLE TO THE PRACTICE

of any evidence introduced which was competent against one
defendant and incompetent aaginst 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 indict-
ment, for separate trials is addressed to the discretion of the
Court, and its action in refusing the same will not be re-
viewed in the absence of clear indications that serious prej-
udice resulted therefrom to one or more of the defend-
ants.

§ 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 thereto until im-
peached. Petitions that merely allege conclusions of law,
such as that the respondent had a right to detain the petition-
ers, are held to be insufficient, and do not controvert the al-
legations of illegal detention alleged 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 obtained on behalf of immigrants upon peti-
tions alleging their illegal detention by an Inspector, which
alleged no facts, but merely as a conclusion of law that the
respondent had the right to detain the petitioners, were in-
sufficient. 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 evi-
dence controverting such facts, the petitioner will be re-
manded to the custody of the officer, and it is error to re-
lease 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 not to be Used on Writ of
Error.—Federal Courts will not inquire into the validity of
GENERAL PROVISIONS APPLICABLE TO THE PRACTICE 103

an indictment on removal by the habeas corpus route.
Henry vs. Henkel, U. 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 re-
view the decisions of courts of competent jurisdiction made
within the the limits of their jurisdiction, even though such
decisions may be erroneous, and a defendant convicted of a
crime by a state court of competent jurisdiction, which con-
viction has been affirmed by the Supreme Court of the State,
will not be released from imprisonment 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, be-
cause of the overruling 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 prosecution.
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 sustained, and said in sub-
stance that a shield against successful prosecution, available
to the accused as a defense, and not immunity from the
prosecution itself, is what was secured by the Act of Feb-
ruary 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 prosecu-
tion, matter, or thing, concerning which he may testify or
104 GENERAL PROVISIONS APPLICABLE TO THE PRACTICE

produce evidence in any proceedings, suit, or prosecution un-
der the said Acts.

The facts of the Heike case were that Heike was indicted
with others for alleged violations of the Customs laws of the
United States, in connection with the fraudulent importa-
tion 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 appeared and filed a
special plea in bar, claiming immunity from prosecution un-
der the aforementioned Act. The plea set up, in substance,
that Heike had been called upon to testify before the grand
jury, in matters concerning the prosecution against him,
and had thereby become immune from prosecution under the
law. The Government filed a replication, and the issues thus
raised were brought to trial, the result of which was a ver-
dict 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 appeal
could be had, and rendered a decision as above indicated.

§ 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 testimony before
the Commissioner of Corporation, Act of February 11, 1893,
27 Stats. L. 443, is made expressly applicable by the Act of
February 14, 1903, which created the Department of Com-
merce and Labor. This immunity act of February 11, 1893,
was enacted to satisfy the demand of the Fifth Constitu-
tional Amendment and does so by affording the witness ab-
solute immunity from future prosecution for any offense
arising out of the transactions to which his testimony re-
lates and which might be aided directly or indirectly there-
by, so as to leave no ground on which the Constitutional
privilege may be invoked. 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 wit-
ness in any Federal Court, does not exempt him from prose-
cution for perjury for giving such evidence and does not pre-
GENERAL PROVISIONS APPLICABLE TO THE PRACTICE 105

vent prosecution for perjury in a bankruptcy proceeding,
nor does it prevent introduction in support of the charge,
not only the false statements, but such other parts of ac-
cused’s testimony as is necessary to make the charge in-
telligible. Cameron vs. U. S., 192, Federal, 548.

In 192 Federal, 83, Heike vs. U. S., the Circuit Court of
Appeals affirms the conviction of an officer of a corporation
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. Persons making no objec-
tion to testifying cannot afterwards complain, though called
said the Court in U. S. vs. Wetmore, 218, Federal, 227,
but see cases above.

§ 40. Improper Person in Grand-Jury Room.—
An expert accountant who is not an attorney-at-law, ap-
pointed by the Attorney General “‘a special assistant’ to
a United States Attorney, to assist in the investigation and
prosecution 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 conducting
proceedings before the grand jury—and his presence 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 sufficiency of other abatement
pleas and time for filing same. Stenographer not allowed.
Latham vs. U. S. 226 Fed. p—-.

§ 40a. Hearsay Testimony Introduced Before Grand
Jury bound to quash the indictment, U. S. vs. Rubin et al.
218, Federal, 245. The use by the United States District
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. Rubin et al., 218, Federal, 245. Latham et al
vs. U. S. 226 F. p. ---. U.S. vs. Philadelphia Ry. Co.
221 F. 683.

§41. Private Prosecutors Unknown in Federal
Courts.—The Federal statutes provide for the appointment
of District Attorneys and their assistants, for the purpose of
prosecuting offenses against the Federal laws. Judge Ham-
106 GENERAL PROVISIONS APPLICABLE TO THE PRACTICE

mond, in United States vs. Stone, 8 Federal, 232, held that
private prosecutors are unknown to the practice of the Fed-
eral Courts, the District Attorney being 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 recog-
nized. 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 agree-
ment of the Executive Department not to prosecute the
offender, and said, that, ‘when there is no District Attorney
in commission, the Government cannot prosecute in this
Court,’ I Bishop Criminal Pr., Sec. 278. It is impossible,
therefore, for anyone to occupy the place of a private pros-
ecutor in this Court.”

§ 42. Proof of Witness’ Former Conviction.—In the
absence of a Federal statute on the subject, the incompetency
of a witness by reason of his prior conviction of a felony, can-
not be shown upon his examination, but only by the pro-
duction 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 ad-
mission, (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 of-
fer 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.
§ 42a.

42b

42c.

42d

42e.

CHAPTER III.

PRACTICE SUGGESTIONS.

Aliens.

. Accomplice.

Alaska—Territorial Courts.

. Assignment of Errors.

Army and Navy: Court Martial, Need Control! by Civil Courts.

42f. Appeal and Writ of Error: Forma Pauperis.
42g. Bill of Particulars.
A2h. Corporations—Indictment of; Individual Aiding and Abetting—

42i.

Proceedure.
Error, Not Assigned, Not Ordinarily Noticed.

42}. Continuance—Granting is Matter of Discretion; Application which

shows Mental Weakness of Defendant Requires a Court to Try
That Issue First.

42k. Extradition; Not Defeated by Habeas Corpus; Technicality of

421.

Trial not Required; General Rules For; Certified Copy from
Secretary of State Sufficient.

Judge—Disqualification of—How to Proceed; Does Not Apply to
Appellate Judges.

42m. Nolo Contendere—Practice Regulating; After Plea Accepted Can-

not be Withdrawn Except by Leave of Court.

42n. New Trial; Discretion of Court—Rulings on Not Assigned as Er-

420

A42p

ror; If Court Refuses to Exercise Its Discretion Such Failure is
Error.

. Limitations; Excepts Fugitives; Federal and not State Statutes
Regulate; Revenue Laws, Prosecutions Under—Within What
Time; Filing of Affidavit Before Commissioner Will not Stop
Running of, nor does Nolle Prosse; May be Raised by De-
muirrer. :

. Sherman Law—Trust Statute; Federal Trade Commission; Pur-
chase of Competing Plants; Must be Undue Restraint; Stand-
ard Oil Cases—Tobacco Cases.

42q. Verdict, Motion to Direct, Waiver; Coercing of Verdict.

42r.

42s.

Writ of Error—Supersedeas; Direct to Supreme Court, When;
Pauper has right to.
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.

107
108 PRACTICAL SUGGESTIONS

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 there-
fore 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 there-
afterward became a laborer, is not subject to deportation.
U. 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.

The meaning of five years’ residence is determined
in United States vs. Cautinie, 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 contract-
ing with aliens and the method to be pursued for its collec-
tion, 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
PRACTICAL SUGGESTIONS 109

or criminally to collect penalty for importing 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 authorities, 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 Fed-
eral ruling, and the Federal ruling being the paramount rul-
ing 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 ap-
plications 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 intention 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 Fed-
eral; 211 Federal.

The granting of bail to a Chinese person after the deporta-
tion order has been entered, is a matter of discretion with
the Court. 132 Federal, 109; 188 Federal, 350.

Chinese exclusion Act, Sept. 13, 1888, Comp. St. 1913,
4310; requires master of vessel to “knowingly”? commit 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.

§ 425. 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 defend-
ant at Common Law or in a Federal Court on the uncor-
110 PRACTICAL SUGGESTIONS

roborated 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 estab-
lished practice sanctioned by long judicial approbation, to
caution jurors about accepting the evidence of an accomplice
without material corroboration, and many of the states for-
bid a conviction on the testimony of an uncorroborated ac-
complice. Coleman vs. State, 44 Tex. 109. Bishop’s New
Criminal Procedure, 2nd Vol. Section 1169.

§ 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 intended to be urged, and
that no writ of error or appeal shall be allowed until such as-
signment of errors shall have been filed. 193 Federal VII.
The failure, however, 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 asignment 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, especially
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 judgment. 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 conditions
detailed in United States vs. Nixon et al., Supreme Court of
the United States, Oct. Term, 1914.

§ 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 judg-
ments of courts martial where they are legally organized and
PRACTICAL SUGGESTIONS 111

have jurisdiction of the offense and of the person and have
complied with statutory requirements governing their pro-
‘cedure. Mullan vs. U. S., 212, U. S., 516.

§ 42f. 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
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 decrees in
prize cases; in any case that involves the construction or ap-
plication 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 Cir-
cuit 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 disbarment
of an attorney is an action in law and the proceedings 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, IOs Latham vs. U. S.,
210 Federal, 159.
112 PRACTICAL SUGGESTIONS

This Act provides for appellate rights by a pauper either
by writ of error or appeal if the person shall certify 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 appeal or writ
of error is not taken in good faith. Act of June 25, 1910,
p. 401, Thornton on Federal Acts.

§ 429. Bill of Particulars.—When an indictment sets
forth the facts constituting the essential elements of the of-
fense with such certainty that it cannot be pronounced ill
upon motion to quash or demurrer, and yet is acknowledged
in such language that the accused is liable to be surprised by
the production of evidence for which he is unprepared, he
should, in advance of the trial, apply for a bill of the parti-
cular. Rinker vs. U. S., 151 Federal, 759; Loring vs. U. S.,
91 Federal, 881. A bill of particulars cannot make an in-
dictment 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.

§ 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
setted 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 act-
ing 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 motive cannot be im-
puted to a corporation and that a corporation 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. Ellis vs. U. S.,
PRACTICAL SUGGESTIONS 113

206 U. S.; U.S. vs. Kelso, 86 Federal, 304; U. S. vs. Corpora-
tion 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 undoubt-
edly the case.that decisions and dicta can be 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 jurisprudence that an indictment will
lie against a corporation, 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 pre-
scribes 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, de-
finable 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 Supreme
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 asummons 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 docu-
ment, and such summons should contain a general statement
of the nature of the charge, and advise the defendant that it
might secure a more complete statement of such offense by

8
114 PRACTICAL SUGGESTIONS

referring to the information 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.

In the case of Hanley vs. U. S., 186 Federal, 711, the de-
fendant, 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 corpora-
tion to answer a criminal charge, I would suggest the fol-
lowing of the statute of the particular state in which the
prosecution is pending that covers the service of Court sum-
mons for acorporation. U. S. vs. Kelso.

‘Bishop, in Bishop’s first volume, New Criminal Law,
page 255, Section 417, treats of the capacity of a corporation
for crime and maintains that a corporation cannot, in its
corporate capacity, commit a crime by an act in the fullest
sense ultra vires, but within the sphere of its corporate capac-
ity, and to an undefined extent, whenever it assumes to act
as a corporation it has the same capabilities of criminal in-
tent 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 corpo-
ration 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. Revett vs. Clise, 207 Federal, 673.

§ 421. 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. They will,
in the exercise of a sound discretion, sometimes notice er-
ror in the trial of a criminal case, although the question was
not properly raised at the trial by objection 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 un-
safe way in which to try a criminal case. The courts are not
called upon to consider objections to the instructions of the
Court or objections to the introduction of testimony unless
PRACTICAL SUGGESTIONS 115

exceptions were properly reserved and are properly pre-
sented for consideration of the Appellate 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.

§ 427. Continuance.—It is well settled that the action
of the trial Court upon an application for a continuance is a
matter of discretion not subject to review, unless such dis-
cretion has been abused. Hardy vs. U. S. 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 showing,
supported by affidavits of the mental weakness of the de-
fendant occasioned by epilepsy, requires the Court to try
the issue by appropriate proceedings.

§ 42k. 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 applica-
tion is made to its chief executive. In the Federal pro-
cedure, 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 of-
fender or witness is committed in any district other than that
where the offence is to be tried, it shall be the duty of the
judge of the district where such offender or witness is im-
prisoned, seasonably to issue, and of the marshal to execute,
a warrant 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, presents
a written statement of such apprehension, including a synop-
sis of the defendant’s preliminary hearing before a United
States Commissioner, to the Court and moves that the Court
116 PRACTICAL SUGGESTIONS

grant the warrant directing the marshal to make the re-
moval. See also Section 14, ante.

Questions of extradition, however, may reach the Federal
Courts, as in the case of er parte Thaw, 214 Federal, 423,
where the Court held that as the source of the extradition
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 constitu-
tion and Acts of congress have reserved to the Federal Gov-
ernment, and imposed upon its Courts, the very important
duty of seeing that the power is exercised upon due and ap-
propriate process, and that it shall not be extended to pleas,
and exercised in all cases, not clearly intended by the con-
stitution. 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.
U.S. vs. Hyde, 132 Federal, 545.

And so when a fugitive has been discharged wrong-
fully, he may be re-arrested. E'r parte Scherer, 195 Federal,
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. Er parte
Graham, 216 Federal, 813.

In extradition matters the technicality of a trial is not re-
quired. 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. Governor’s
warrant is sufficient until presumption of its legality is
overthrown, Reed vs. U. S. 224 Fed. 378.

General rules governing such procedure in the Federal
Courts will be found in re Zentner, 188 Federal, 344. An
exhibition on extradition of a certified copy from the Sec-
retary of State is sufficient. Er parte Urzua, 188 Federal,
541. See Section 322 post.
PRACTICAL SUGGESTIONS 117

§ 421. 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 Judi-
ciary Act approved March 3, 1911, p. 27, Hopkins Judicial
Code, provides that, whenever a party to any action or pro-
ceeding, civil or criminal, shall make and file an affidavit that
the Judge before whom the action 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 further therein, but another Judge shall be
designated in the manner prescribed in the Section last pre-
ceding, 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 prej-
udice 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 affi-
davit; 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 pend-
ing suit or action.

The Supreme Court of the United States, in Glasgow vs.
Moyer, 225 U. S., 425, reviews, in an habeas corpus pro-
ceeding to pass upon the question as to whether or not a
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 Sec-
tion 21 quoted above did not apply to appellate tribunals.
The affidavit, in order to be effective under this Section,
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 before the Court,
be effective. Ex parte Fairbank Co., 194 Federal, 978.
118 PRACTICAL SUGGESTIONS

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 suffi-
cient to disqualify the Judge without hearing or determina-
tion of whether the facts stated are true or show disqualifi-
cation, 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 dis-
qualify 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 Constitution of the United
States places judicial power exclusively 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 before
Section 21 of the new Code went into effect, in Epstein vs.
United States, 196 Federal, 354, the Circuit Court of Ap-
peals for the Seventh Circuit held that where the defendant
was brought to trial before a Judge who had previously re-
marked, in the presence of the accused: “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 pun-
ished under the law, to institute proceedings against him,
had merely performed his duty to direct an official investiga-
tion of what appeared to be a criminal offense, and did not
therefore become disqualified to try the accused therefore,
as being either “concerned in interest” or ‘‘of counsel”
for the prosecution.

§ 42m. Nolo Contendere.—This plea is the defend-
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 between
it and guilty appears simply to be that while the latter is a
PRACTICAL SUGGESTIONS 119

confession binding the defendant in other proceedings, the
former has no effect beyond the particular case. Bishop’s
New Criminal Procedure, 2nd Vol., p. 624. It is allowable
only under leave and acceptance by the Court and when ac-
cepted the Court becomes an implied confession of guilt and,
for the purposes of the case only, equivalent to a plea of
guilty, but distinguishable 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 Fed-
eral, 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 im-
prisonment at the discretion of the Court, either as an alter-
native 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 misdemean-
ors for which the punishment must be imprisonment. When
an indictment contains counts charging offenses for which
the statute requires the imposition of punishment by both
fine and imprisonment and other counts for offenses which
may be punished by fine alone, the Court has authority to
allow a tendered plea of nolo contendere, but in such case the
further proceedings and punishment must be confined to the
latter class of counts, to which alone the plea is applicable.
Tucker vs. U. S., 196 Federal, 260, When a plea of nolo
contendere is tendered to an indictment containing counts,
some of which charged offenses which required punishment
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 sen-
tence the defendant to both fine and imprisonment, be-
cause 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 necessary that the
Court should adjudge that the party was guilty because that
follows by necessary legal inference from the implied con-
fession. State vs. Herlihy, 66 Atl., 643; 102 Me., 310.
120 PRACTICAL SUGGESTIONS

Such a plea, when accepted by the Court, cannot be with-
drawn and a plea of not guilty entered, accept by 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 defendant to with-
draw it, nor could the Court fail to act upon such a plea
after the same were tendered to and accepted by him.

§ 42n. New Trial.—Section 726 of the Revised Statutes
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 granted in Courts of
law.

Motions for new trials are addressed to the discretion of
the Court in the Federal jurisdiction and are not reviewable
in an Appellate Court. Terre Haute vs. Struble, 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 ete. 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 denying
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 discretion cannot
be reviewed. It is also settled that if the trial Court re-
fuses 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 discre-
tion. It overruled the motion because in the exercise of its
PRACTICAL SUGGESTIONS 121

discretion it did not believe that it was entitled to a new —

trial.

§ 420. 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 Fed-
eral offenses, with the exception, of course, of such limita-
tions 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 prosecuted,
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 offense is done or
committed. Section 1045 provides that the statute of limita-
tions 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 pro-
vided that no one should be prosecuted, tried or punished
for any crime arising under the revenue laws or the slave
trade laws of the United States unless the indictment is
found, or the conviction is instituted within five years next
after the committing of such crime. Section 1048 is not now
interesting for the reason that it related to matters arising
during 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 Appeals
for the Fifth Circuit in Carter vs. New Orleans, etc., 143
Federal, 99, held that Section 1047, which provided a period
of five years for the cornmencement 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 under Sections 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, Ist Vol. Supp. 463,
Congress changed the statute of limitations as to revenue
laws of the United States, and provided that no prosecution
122 PRACTICAL SUGGESTIONS

should be brought nor any person tried or punished for any
of the offenses under the internal revenue laws unless an in-
dictment is found or the information instrituted within three
years next after the commission of the offense, in all cases
where the penalty prescribed may be imprisonent in the
penitentiary, and within two years in all other cases, pro-
vided that the time during which the person committing
the offense is absent from the district 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 com-
plaint shall be instituted before a Commissioner of the United
States within the period above limited, the time shall be ex-
tended 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 not sat-
isfied by the filing of an affidavit before a Commissioner.
Such action by the government will not stop the running of
the statute. Matter of Lacey, 1894, Okla., 4. <A nolle
prose qui’d indictment will not stop the running 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 con-
struction of the Act of Federal Limitations, see 91 U. S.,
566. But see Revenue Statute.

§ 42p. Sherman Law—Trust Statute.—Sections 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.
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 ex-
ceeding $5000, or by imprisonment not exceeding one year,
or by both said punishments at the discretion of the Court.

Section 2 provides, ‘Every person who shall monopolize
PRACTICAL SUGGESTIONS 123

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 na-
tions, shall be deemed guilty of a misdemeanor and on con-
viction 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 com-
merce, in any territory of the United States or of the Dis-
trict of Columbia, or in restraint of trade or commerce be-
tween any such territory and another, or between any such
territory or territories, and any state or state or the District
of Columbia, or with foreign nations, is declared illegal, and
a punishment like that prescribed in the first section, is pro-
vided 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 a corporation shall violate any of
the penal provisions of the anti-trust laws, such violation
shall be deemed to be also that of the individual directors,
officers, or agent of such corporation who shall have author-
ized, ordered or done any of the Acts constituting, 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 noticed.

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 documentary evi-
dence and for making false entries in reports or acounts of
corporations, or for removal or mutilation of documents, and
also for certain contempts. The statute 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.
124 PRACTICAL SUGGESTIONS

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 com-
modity 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 unnecessary. U. S.
vs. Patten, 187 Federal, 664. The continuance of a monopoly
after the completion of the conspiracy, is itself an offense
under this Act. U. S. vs. Patterson, 201 Federal, 698, in
which case will be found the cash register indictment in full.
This cause was reversed by the Circuit Court of Appeals.

A mere purchase of competing plants does not necessarily
constitute a monopoly within the meaning of the statute.
U. S..vs. Keystone Watch Company, 218 Federal, 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 competi-
tion 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 un-
due 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 affecting to a sub-
stantial degree and to the disadvantage 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 commerce. Thus a purchase of
an interstate milk business to the extent that the purchasers
own 86 per cent of the business, are not merely unreason-
able because of such purchase, but such question of un-
reasonableness was a question for the jury. U. S. vs. Whit-
ing, 212 Federal, 467. The Act should be construed in the
light of reason, and as so construed it prohibits all contracts
and combinations which amount to an unreasonable or un-
due restraint of trade in interstate commerce. Standard
Oil Co. vs. U. S., 221 U.S., 1.

A contract to strangle a threatened competition by pre-
venting the construction of an immediately projected line of
railway, which if constructed would naturally and substan-
tially compete with an existing line for interstate traffic, is
PRACTICAL SUGGESTIONS 125

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 con-
demnation 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 corporation, puts a restraint
on 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 ef-
fect is only incidentally or indirectly to restrict the com-
petition while its chief result is to foster the trade and in-
crease 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 al. 149 Federal,
823.

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 interpretation of
each contract and agreement by the standard of reason.
The Standard Oil case was followed by the Supreme Court in
United States vs. American Tobacco Company, 221 U. S.,
106.

§ 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 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 con-
clusion of the defendant’s testimony, 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 165 and 25a.
126 PRACTICAL SUGGESTIONS

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 verdict 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
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 an-
other 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 ex-
penditure of time and money and defendants, if guilty, have
a right to have that fact determined before they are bank-
rupt, and if innocent a right to be acquitted before their
means are exhausted. Peterson 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. Camp-
bell 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 Peter-
son case just above cited, held that it was not coercing a
verdict for the trial Court to tell them that the case was im-
portant and costly both to the Government and to the de-
fendants, and that the jury must remember that the wit-
nesses were likely to disappear and could not be had at an-
other 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 conviction, no juror should do so
arbitrarily but should listen to the arguments of the other
jurors and come to an understanding if he could, and be
convinced by their argument; that it was wrong to convict as
well as to acquit a man on an arbitrary stand taken by a
juror, and that they must not consider the penalty in the
case whatever. The language, 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.
PRACTICAL SUGGESTIONS 127

§-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 appli-
cation made therefor. Whether the judgment shall be super-
seded 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 supersedeas 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 punishment should be begun until the
guilt has been finally determined. It is in the power of the
Court to fix a commensurate bond pending such review and
if a trial Court should arbitrarily refuse a supersedeas, ap-
plication should be made to the Court of Appeals for the
same circuit or one of the Judges thereof, and unless the pros-
ecution could show to the Court that the record of the
convicted warranted a presumption that it 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 judgment.
Roberts vs. Kendrick, 211 Federal, 970. And when such
writ of error is not so sued out and lodged, a supersedeas
previously granted will be vacated and annulled. Roberts vs.
Kendrick, 211 Federal, 970.

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. Su-
preme Courts may grant certiorari in Criminal Code 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, with-
out being required to prepay fees or costs or for the print-
128 PRACTICAL SUGGESTIONS

ing of the record in the Appellate Court or give security
therefor. The pauper shall file in Court a statement 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 re-
dress he seeks by such writ of error, etc. Latham vs. U.
S., 210 Federal, 159.

§ 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 genuineness of the
handwriting of any person may be involved, any admitted or
proven handwriting of such person shall be competent evi-
dence as a basis for comparison by witnesses or by the jury,
court or officer conducting such proceeding, to prove or dis-
prove such genuineness.” Of course this statute does not at-
tempt to place a value on such testimony. After being ad-
mitted 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 writing
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 authori-
ties 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 estab-
lish another writing, being an issue in the case, which he dis-
putes.

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 genuine, or are such,
as the party is estopped to deny, or are papers belonging to
the witness, who was himself previously acquainted with the
party’s handwriting, and he exhibits them in confirmation
PRACTICAL SUGGESTIONS 129

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 un-
doubted evidence in order to avoid the danger of fraud and
surprise and the multiplication of collateral issues.
51.

5la.

52.

52a.

53.

53a.

53b.
53c.

53d.

54.

55.

55a.

56.

CHAPTER IV.

POSTAL CRIMES.

Jurisdiction of State and Federal Courts.

Section 3833 as to Jurisdiction.

Breaking Into and Entering Post Office.

Unlawfully Entering Postal Car or Interfering With Postal Clerk.

Assaulting Mail Carrier with Intent to Rob; Robbing Mail and
Injuring Letter Boxes or Mail Matter and Assaulting Carrier.

. Reasonable Doubt in Appellate Court.
. Duplicitousness in Indictment Charging Robbery of Mail Clerk.

Obstructing Mail.

. Presumption as to Mail on Train.

Ferryman Delaying Mail.

Post Master or Other Employee Detaining or Destroying News-
papers.

Post Master or Employee Detaining or Destroying or Embezzling
Letter; Decoy Letters—Proper and Improper Use of.

Fact case; Indictment Under this Section.

Stealing, Secreting, Embezzling, etc. Mail Matter or Contents.

Indictment Under this Section.

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.

Indictment Under this Section; Satisfying by Bill of Particulars;
Setting Forth Whole Instrument.

Matter Intended to Incite Arson, Murder or Assassination.

Prize Fight Films—Such Film for One’s Own Convenience; No
Violation; Pictorial Representation Included

Paid Editorial, etc., to be Marked Advertisement; Statute relates
to Second Class Matter.

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.

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.

Other Illustrative Cases under This Statute—Pretending to be
Eminent Physician.

Civil Statute against Fraudulent Use of Mail.

130
POSTAL CRIMES 131

§ 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.

61. Issuing Stock.

62. Other Cases Under the Lottery Statute.

63. Post Masters not to be Lottery Agents.

64. False Returns to Increase Compensation.

65. Civil Remedy to Recover Compensation.

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.

§ 43. Postal Crimes.—The provisions of Section 3833
that give jurisdiction to all civil and criminal causes arising
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 in-
junction filed in the state District Court against the United
States Postmaster at New Orleans, seeking certain relief
against the enforcement of the sections of the Revised
Statutes relating to fraud orders, and which action was re-
moved 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
132 POSTAL CRIMES

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,
therefore, that 3833 is really a section of convenience. Since
there are state justices of the peace and committing magis-
trates at nearly all points, the state or Federal officer 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 justices of the peace and commit-
ting magistrate for services of this sort are presented for ap-
proval 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 serv-
ice and system, because they are the most common viola-
tion. 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 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 punishment 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 there-
of 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 com-
mitting an offense in a building, unless 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 Camp-
bell, the Court sustains a demurrer 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 passing upon the demur-
POSTAL CRIMES 133

rer, the Court said that, “‘a building used in part as a post-
office may contain many rooms besides 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 a post-office.”” Mr. Justice
Storey, in United States vs. Coombs, 12 Peters, 76, said:
“If the section admits of two interpretations, one of which
brings ‘t within, and the other presses it beyond, the con-
stitutional 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 exercise or
usurp any unconstitutional authority, unless that conclusion
is forced upon the Court by language altogether unambigu-
ous.”

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. Will-
iams, 57 Fed., 201; also United States vs. Shelton, 100
Fed., 831; United States vs. Martin, 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 build-
ing, merely because they had been seen with other persons
lawfully within the premises before they were closed for the
night. In this same case, the Court refused, 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 permitted
the defendant, will not now be considered binding against
defendants under the new Code, for the reason that the
134 POSTAL CRIMES

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 being prosecuted under
Section 192 would be entitled to ten instead of three chal-
lenges.

The word “forcible”? when used in a criminal statute in de-
scribing night-time or day-time burglaries, comprehends 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 build-
ing, by opening the door, 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 sep-
arate offenses under old Sections 5475 and 5478, yet they are
offenses of the same kind and the same grade of punishment,
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 practice 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 Soren-
son vs. United States, 168 Federal, 785, are cases arising un-
der Section 5478, and which do not decide any point with
reference to the statute or an indictment thereunder. They
contain, however, some interesting questions of practice with
reference to circumstantial evidence 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 serv-
ice, and also denominates as an offense any wilful or mali-
cious assault or interference with any postal clerk in the dis-
charge of his duties in connection with such car, steamboat,
POSTAL CRIMES 135

vessel or apartment, and also punishes any one who shall
wilfully aid or assist in either.

Neither this section, nor the substance thereof, was in-
cluded in the old Revised Statutes. There was a provision
largely similar passed by the Fifty-seventh Congress, as
shown at page 1176 of the 32 Statute at Large. That pro-
vision has, however, been broadened by the omission of
some words and the substitution of others.

A close reading of the statute indicates that the authori-
ties that relate to entering a post-office or a building
used in part as such office, cited under the old statute 5478
and under the new Section 192, would be in a large measure
applicable to this section.

§ 47. Assaulting Mail Carrier with Intent to Rob,
and Robbing Mail and Injuring Letter Boxes or Mail
Matter, and Assaulting Carrier, Etc.—Under this head-
ing, 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 Con-
gress. The present section, as it now stands, is intended to
protect more certainly the numberless rural route and star
route boxes and mail receptacles.

It must be understood that no mail receptacle is protected
under this statute, unless the same has been established, ap-
proved, or designated by the Postmaster General. The in-
dictment should, therefore, allege such approval, designa-
tion, 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 impos-
sible to bring the Postmaster General or some informed sub-
ordinate from his office into the various Districts of the
Union, and testify to such action at Washington, and they,
therefore, sometimes admit the testimony of the local post-
master that the receptacle is the proper one, or sometimes
they admit the receptacle itself, which has stamped thereon
the words designated, established, or approved by the Post-
master General. So also, some of the printed regulations of
136 POSTAL CRIMES

the Post-office Department give the dimensions and styles
and description of the various receptacles, and these are
sometimes admitted. The books contain no particular 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, eliminates
some of the uncertainties that were in the old statutes, and
as the new section now stands, it is easily understood. The
following cases were interesting under 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 responsibility of one aiding or ad-
vising 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 prosecu-
tion for which the defendant was entitled to ten peremptory
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.—
Matthews vs. U. S., 192 Federal, 490, is a fact case under old
Section 5472, in which the Court of Appeals affirms a judg-
ment based upon circumstantial evidence and announces the
rule that an Appellate Court need not be satisfied beyond a
reasonable doubt of the guilt of the defendants in order to
affirm.

§ 47b. 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.

§ 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 punishment,
which was, in the old statute, a fine of not more than a hun-
POSTAL CRIMES 137

dred dollars, to a fine of not more than one hundred dol-
lars, 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 charg-
ing defendants with conspiring ‘“‘to unlawfully, wilfully,
maliciously, and knowingly” delay and obstruct, 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 session,
page 1176 of the first part of Volume 32, Statute at Large,
Congress determined “‘that every special delivery messen-
ger, when actually engaged in carrying or delivering letters or
other mail matter under contract, directly or indirectly,
with the Post-office Department, or employed by the Post-
office Department,”’ shall be deemed a carrier or person in-
trusted with the mail, and having custody thereof, within
the meaning of certain Sections of the Revised 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 interest-
ing cases bearing upon the old section are the following:
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, 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
138 POSTAL CRIMES

execution of the warrant. United States vs. Harvey, 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 voluntary act of ob-
struction 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 prevent the arrest of the driver of a
carriage transporting the mail when he was driving through a
crowded city at such a rate as to injure the lives of the in-
habitants. So also, it is understood that mere service of pro-
cess on a mail carrier, without detaining him, is not an ob-
struction of the mail. United States vs. Harvey, 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 inter-
est in the speeding of mails, is for the officer to make the ar-
rest after the carrier has delivered his charge, which is not at
all difficult to accomplish.

§ 48a. 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 presumed to be
a carrier of United States mail and that therefore an alle-
gation of knowledge was unnecessary in an indictment under
Section 201. The learned judge cites no authorities in sup-
port of his decision. It is not believed that such a presump-
tion will be allowed in the criminal law. The stopping of a
train, the chastising of the engineer of a train or the in-
fliction of bodily punishment 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 cer-
tainly 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 conveying
United States mail and it is thought that Salla vs. U. S.,
POSTAL CRIMES 139

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 indictment is defective.

§ 49. Ferryman Delaying the Mail.—Section 202
differs 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 evidently means any delay 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 department of the postal service, shall improperly de-
tain, 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 being authorized to open or receive the same; or
whoever shall take or steal any mail or package of news-
papers 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 prac-
tically nothing new except that the wording is changed some-
what, and the punishment is enlarged.

For some reasons there were few prosecutions under 5471,
and so far as reported decisions are concerned, the books con-
tain none. Evx 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 the term be less than one
year. In State vs. Nichols, 50 Louisiana Ann., 699, the
statute is cited.

At page 512 of the First Volume of the Supplement, be-
ing an Act of the Forty-ninth Congress, which applies alike
140 POSTAL CRIMES

to all of the statutes relating to offenses against the postal
service, committed by persons employed therein in connec-
tion with the immediate delivery service, whether tem-
porarily 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 the postal service, whether he may have been
sworn or not, or temporarily or permanently employed, and
as such employee shall be liable to any penalties or punish-
ments provided by law for the improper detention, delay,
secretion, rifling, embezzlement, purloining, or destruction of
any letter or other article of mail matter, or the contents
thereof, entrusted to him for delivery, or placed in his cus-
tody.”

§ 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 de-
tain, delay, or open any letter, postal card, package, bag, or
mail intrusted 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 for-
warded 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 re-
move from any such letter, package, bag, or mail, any article
or thing contained therein, shall be fined not more than five

ee dollars, or imprisoned not more than five years, or
ot ny

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 matter, 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 necessary to
POSTAL CRIMES 141

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 dur-
ing acertain watch. There may be more than one man upon
this watch, and it is entirely unjust to suspect all of them.
Decoys are, therefore, used. These decoy letters are some-
times called ‘‘test”’ letters. The question arose as to whether
or not such letters could be the subject of the offense de-
scribed 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 night-clerk in charge of Branch
Station ‘F’ of the post-office. The defendant was not a let-
ter 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 person. 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 de-
livered 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 entirely suffi-
cient to sustain the conviction upon the latter part of Sec-
tion 5467, which did not include the words “intended to be
conveyed by mail.”” The Court cites Good vs. United States,
159 U. S., 663; 40 Law Ed., 297; Montgomery vs. United
States, 162 U. S., 410; 40 Law Ed., 1020.
142 POSTAL CRIMES

I have spoken in a preceding paragraph of the use of de-
coy 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 every-
one 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 en-
trap criminals or to present opportunity to those having in-
tent 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 todoso. Where a statute makes an
act a crime regardless of the actor’s intent or knowledge, ig-
norance of fact is no excuse if the act is done voluntarily;
but if done on solicitation by the government’s instrument
to that end, ignorance of fact shows the act to have been in-
voluntary and estops the government from claiming a con-
viction.

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 mo-
tion, set aside the conviction.

It will be observed that the new statute uses the word
“such,” which means, beyond any question of a doubt, a let-
ter, 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 Depart-
ment of the Postal Service, or forwarded through, or de-
livered 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 sufficiently broad to prosecute an
employee who stole a decoy 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,
POSTAL CRIMES 143

packet, bag, or mail which had come into his possession as
such employee; which is vastly different in its broadness
from the present statute.

The case of Ennis vs. United States, 154 Federal, 842, de-
cides 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 em-
ployee had left it, such employee 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, and placed in a carrier’s
pigeon hole at a postal station, with other letters addressed
to a real person on his route is “intended to be conveyed by
mail,” and its abstraction by the carrier, and the taking of
the money therefrom constitutes an offense under 5467,
although it was placed there by postal inspector for the pur-
pose of testing the carrier’s honesty.

The difference between the Bromberger case and the Hall
case is, that the test or decoy in the Bromberger case was ad-
dressed to an actual person, and was intended for delivery to
such person, while in the Hall case, it was a fictitious ad-
dress, 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 delivered by a carrier, messenger, agent, or
other person employed in a Department of the Postal Serv-
ice, or forwarded through or delivered from any post-office or
station thereof, established by authority of the Postmaster
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.
144 POSTAL CRIMES

Under the authority of Shaw vs. United States, in 165
Federal, page 174, the indictment must allege lawful pos-
session, 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 ownership of the packet.
The employee, under the present section, whether he be post-
master or other person, can offend against the new law only
when he is such employee, has mail entrusted to him, or has
mail in his possession 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 re-
move 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 or not, and any
letter or packet, whether it has any article 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 compre-
hending the elements of 3890 and 3891, as well as those of
5467. Other cases bearing 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, 593;
United States vs. Lacher, 134 U. S., 624; United States vs.
Delany, 55 Federal, 475; United States vs. Gruver, 35 Fed-
eral, 59; United States vs. Byrne, 44 Federal, 188; Walster
vs. United States, 42 Federal, 891; United States vs. Mat-
thews, 35 Federal, 890; Rosencrans vs. United States,
165 U. S., 257; in re Wight, 134 U. S., 136; U. S. vs. Taylor,
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.

§ 5la. For a fact case under Section 195, see Welsing
vs. United States, 218 Federal, 369.

An indictment under this Section need not describe the
article contained in the mail package with the same partic-
ularization as in a prosecution for forgery or larceny, but
the article must be stated and sufficiently described 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.
POSTAL CRIMES 145

An indictment which charged that a letter contained “arti-
cles of value”’ to wit, “$12 in money of the U. S.” was suffi-
cient 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 “removed”
or the one into which the article is taken with the evil intent.
Perara vs. U. S., 221 Federal, 213.

§ 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 punishment 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 busi-
ness or secrets of another, and 5469 originally was for the
taking of mail matter by theft or other unlawful method by
any person not employed in the postal service. It is only by
being familiar with Section 5467 and 3891 and. 3890, as
heretofore treated, that we conclude that 5469 related to
persons other than postal employees. Under the terms of
Section 194, as it now reads, one who, by misrepresentation
or pretense, secures from a post-office mail directed and in-
tended for another, is liable to the penalties of that section.
For instance, one who calls for the mail of another, represent-
ing 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 ref-
erence to 5469, seems to be applicable to the needs of an in-
dictment 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 embezzlement of
the same or its contents must be either fraudulent or unlaw-
ful, and an indictment which leaves this open to inference is
defective. Thus, an indictment which by inference may al-
low the letter charged to have been taken to have been de-
livered to and received by the defendant through a mutual
mistake, is insufficient. Mail matter that has been delivered
by the Postal Department to its address thereby passes
146 POSTAL CRIMES

from the protection 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 un-
lawfully, cannot be made the subject of the above article.
It must still be in the custody of the Post-office Department
before 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 Department 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 arrested upon an informa-
tion charging him with embezzling a letter containing an
article of value, which had been in the United States Post-
office at St. Louis and 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 functions 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 addressed, within
the meaning of the law; and the duty of the postal authori-
ties with respect to such letter having 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. McCready, 11 Federal, 225.

It is not thought that United States vs. Hilbury, reported
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 person 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 protection and custody and juris-
POSTAL CRIMES 147

diction of the United States had ceased. The entire weight
of authority is against the decision in 29 Federal, just above
cited, and the following decisions support the doctrine of 66
and 90 Federal, 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 distin-
guished from the weight of authority, and it is thought that
the learned judge there used expressions ill advisedly that
seem to support the decision in the 29 Federal.

It must also be borne in mind that one who secures law-
fully from the Postal Department a letter belonging to an-
other, and who thereafter forms the design to commit an un-
authorized act, as defined 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 in-
complete. United States vs. Smith, 11 Utah, 433; United
States vs. Wilson, 44 Federal, 593; United States vs. In-
abnet, 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 Government’s case itself; in
other words, it is a part of the facts that must be proven by
the Government, inferred through 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 de-
ception obtain, from or out of any mail, postoffice, or sta-
tion thereof, or other authorized depository for mail matter,
or from a letter or mail carrier, any letter, postal-card, pack-
age, bag, or mail, or shall abstract or remove 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
contained therein; or whoever shall buy, receive, or conceal,
or aid in buying, receiving, or concealing, or shall unlaw-
fully 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 abstracted, as here-
in described, knowing the same to have been so stolen, taken,
148 POSTAL CRIMES

embezzled, or abstracted; or whoever shall take any letter,
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 any
post-office or station thereof, 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 to pry into the
business or secrets of another, or shall open, secrete, embezzle,
or destroy the same, shall be fined not more than two thous-
and dollars, or imprisoned not more than five years, or both.”

The following cases may be of interest relating to the orig-
inal 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 Federal, 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 Fed-
eral, 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 defendant did wil-
fully, etc., receive from a certain described bank notes of a
specified value, which had been knowingly, etc., stolen from
the mails and that the defendant, at the time and place of re-
ceiving and concealing, etc., knew the same to have been un-
lawfully 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 objectionable for failure to charge the intent or
the name of the owner. Thompson vs. U. S., 202 Federal,
401.

§ 53. Obscene, Etc., Matter, Non-mailable, and
Penalties.—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 pub-
POSTAL CRIMES 149

lication of an indecent character, and every article or thing
designed, adapted, or intended 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 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 printed card, letter, circular, book,
pamphlet, advertisement, or notice of any kind giving in-
formation directly or indirectly where, or how, or from whom,
or by what means any of the hereinbefore-mentioned mat-
ters, articles, or things may be obtained or made, or where or
by whom any act or operation of any kind for the procuring
or producing 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 that any
article, instrument, substance, drug, medicine or thing may,
or can be, used or applied for preventing conception or pro-
ducing 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, or thing, is hereby declared to be non-mailable
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 deposited for mailing or
delivery, anything declared by this section to be non-mail-
able, 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 of disposition thereof,
shall be fined not more than five thousand dollars, or im-
prisoned 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 sec-
tion, has never before been used in 3893 or any of its pre-
decessors. The Century Dictionary defines filthy to mean,
foul, dirty, nasty, polluted, low, contemptible, mean, and
gives as synonyms, impure, corrupt, gross. In Reg. vs.
Wood, 5 El. and BI., 49, 85 E. C. L., 49, show 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 protect against “offensive, filthy, and vulgar
language,’ when conveyed by a sealed wrapper, unless the
150 POSTAL CRIMES

language will have, or may have, an immoral effect in a sense
relating to sexual impurity upon those into whose hands the
written language may come. The Courts all along have al-
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 construction, it will
be welcome indeed, because under the present authorities, the
old section permitted a perfect sluice of vulgarities and
coarseness and obscenity to pass through the United States
mails unchallenged and unprosecuted. 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 dictionary 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” and
‘“‘prostitute” and a great many others that are used in an
abusive 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 ex-
pressions.

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 sec-
tion. 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 de-
fined as nasty, dirty, vulgar, indecent, offensive to the moral
sense, morally depraving and debasing, and after such defini-
tion 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 knowingly deposited or
caused to be deposited, and the best practice 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 authority of Price vs. United States,
165 U.S., page 308; 41 Law. Ed., page 727, but it is decidedly
the best pleading. Rosen vs. United States, 161 U. S., 29;
40 Law Ed., 606. The mailing of obscene matter in answer
POSTAL CRIMES 151

to decoy requests, such requests being made by postal in-
spectors for the purpose of fixing absolutely the guilt of the
sender 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 in-
dictment must also allege that the matter is non-mailable.
United States vs. Clifford, 104 Federal, 296, but the indict-
ment 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 Federal, 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 distinctly held that the mail-
ing 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 im-
moral 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.
Martin, 50 Federal Rep., 918. In the Martin case, a letter
from a man to an unmarried woman, proposing a clandestine
trip to a neighboring town and a return the next morning,
the man to pay expenses and five dollars besides, was held
to be an obscene letter within the meaning 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 giving information where courte-
sans could be found, came within the Act, although such ad-
vertisements were couched in the most chaste and elegant
152 POSTAL CRIMES

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
signified 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, therefore,
do not extend to language although it may be exceedingly
coarse and vulgar, and plainly libelous, if it has not a lewd,
lascivious, and obscene tendency, calculated to corrupt and
debauch the mind and morals. This definition supports, it
would seem, the line of authorities upholding the Martin
decision, cited supra, and also limits the purpose of the
original statute to such obscenity. In the Swearingen case,
the prosecution was for the mailing of a paper which con-
tained the coarsest possible 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, be-
cause 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. Material 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 in-
ference 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 administration of the funda-
mental power of review on a motion for a new trial, the find-
POSTAL CRIMES 153

ings 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 ver-
dicts in that case until one should be returned that was in
accord with the undisputed facts; so he cuts off the possi-
bility of useless verdicts by directing in the first instance, the
jury to return the only verdict he will let stand. But ina
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.
Therefore, since the judge is without power to review and
overturn a verdict of not guilty, there is no basis on which
to claim the power to direct a verdict of guilty. Our conclu-
sion 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 the 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 article is obscene, lewd, or lascivious, within the mean-
ing of the statute. Ifit was fairly open to the construction of
falling within either of these classes, it was the plain duty of
the Court to submit the question 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 prohi-
bition 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 con-
clusions as to the character of the writing, it is the duty of
the Court to submit the question to the jury,”

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 ele-
ment alleged in the bill of indictment must be proven be-
yond a reasonable doubt by the sovereignty, and each of
such elements, and the proof thereof to the measure indi-
154 POSTAL CRIMES

cated, is to the satisfaction of the jury, and any peremptory
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 say whether the facts show such
obscenity, lewdness, lasciviousness, etc. Botsford 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 mat-
ter, within the meaning of the statute, has a pure motive; if
the matter mailed is obscene, he is guilty. So, also, the free-
dom 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. Moblenski, the
Court held in substance that the matter must tend to cor-
rupt 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 ob-
tuse as to be beyond further injury 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 presence of
women, and the purpose, therefore, of the Federal statute, it
would seem, is to protect the innocent and pure against hav-
ing obscenity intruded upon their notice.

The section, so far as it relates to the prevention of concep-
tion and articles intended therefor, would require that the
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 Federal, 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.
POSTAL CRIMES 155

In Ackley vs. U. S., 200 Federal, 218, it was held that a
decoy letter from a postoffice inspector relating to that por-
tion of the statute designed to prevent the mails forthe con-m
veying 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 post-
office 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 immaterial that such letters
would upon their face give information as to their true mean-
ing 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 en-
able the defendant to avail himself of a conviction or ac-
quittal thereon as defense to a second prosecution for the
same offense, and is insufficient in face of a motion in arrest
of judgment, 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 offense. In other
words, if one should deposit in the United States mails any
article inhibited by the statute it would not be an offense un-
less such deposit was knowingly done.

An indictment which charges that the defendant received
from the Post-office 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 information as
he, the defendant well knew, as to how, when, where, of
whom and by what means certain articles, etc., intended to
156 POSTAL CRIMES

prevent conception, might be obtained, was not demurrable
for failure to allege that defendant knew or believed the
articles mentioned in the letter were designed or intended to
prevent conception. U. S. vs. Currey, 206 Federal, 322.
This case also holds that this section does not apply to a letter
describing and advertising certain articles in a manner cal-
culated to lead another to use and apply such articles for the
prevention of conception, if it does not give information as to
where they can be obtained.

It is reversible error to ask highly prejudicial and improper
question as to division of fees in abortion cases upon trial of
indictment charging the furnishing of information 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 question was really improper. The
defendant was being tried for a similar offense and his agree-
ment 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.

By an amendment to an Act in May, 1908, Congress pro-
vided 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 authorize such meaning
for the word “indecent” in Section 211. Federal Statutes
Annotated, Supplement 1909, page 525. Other cases bearing
upon this statute are the following:—Evans vs. United States,
153 U. S., 587; Grimm vs. United States, 156 U. S., 608;
Rinker 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 Federal, 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.—lIn U. S. vs. Noelke, 1 Fed. Rep., 426, which
was followed in U. S. vs. Williams, 3 Federal, 484, the Court
POSTAL CRIMES 157

held that the postmark upon the envelope made a prima
facia case that the letter had been depesited in the United
States mail.

§ 53a. Indictment.—Ordinarily documents essential to
the charge of crime must be sufficiently described to make the
contents thereof known, yet matter too offensive 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 docu-
ment intended without setting forth its contents and this
course is applicable to an indictment under this statute.
Bartel vs. U. S., 227, U. 8. 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. Kennerly, 209 U. S., 119.

I believe that the whole instrument in which is contained
the alleged improper matter, whether book, pamphlet, paper,
or writing, should be submitted to the jury and included by
them in their consideration as to whether the alleged mat-
ter is unmailable. U.S. vs. Kennerly, 209 Federal, 119;
Clark vs. U. S., 211 Federal 917.

§ 53b. 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
“qndecent’”’ as used in this section, such amendment being,
“That the term ‘indecent’ within the intendment of this sec-
tion shall include matter of a character tending to incite
arson, murder or assassination.” 36 Stats. L. 1335, page
302, Ist Vol. 1912, Supp. Fed. Stats. Ann.

§ 53c. Prize Fight Films.—On July 31, 1912, the Con-
gress passed an Act providing as follows:

Ҥ 1. That it shall be unlawful for any person to deposit or
cause to be deposited in the United States mails for mail-
ing or delivery or to deposit or cause to be 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 Columbia to any other state or territory of
the United States or the District of Columbia, or to bring or
cause to be brought into the United States from abroad any
158 POSTAL CRIMES

film or other pictorial representation of any prize fight or en-
counter of pugilists, under whatever name, which is designed
to be used or may be used for purposes of public exhibition.

Ҥ 2. That it shall be unlawful for any person to take or
receive from the mails or any express company or other com-
mon carrier, with intent to sell, distribute, circulate or ex-
hibit any matter or thing herein forbidden to [sic] be de-
posited for mailing, delivery or carriage in interstate com-
merce.

Ҥ 3. That any person violating any of the provisions of
this Act shall for each offense, upon conviction thereof, be
fined not more than one thousand dollars or sentenced to im-
prisonment 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 exhi-
bition or for the purpose of sale, distribution or circulation,
which words seem to be broader than the word exhibi-
tion. The sending of such a film for one’s own convenience
and without any thought of exhibiting or selling or circulat-
ing the same would, of course, not be unlawful.

The statute not only inhibits the sending of films but,
likewise any pictorial representation, which would include
photographs or 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 simulated prize fight. In
other words, the film or representation, in order to be un-
lawful, 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 pugilists.

§ 53d—Paid Editorial, etc. to be marked ‘‘Advertise-
ment’’—Congress, on August 24, 1912, passed the following
statute; “That all editorial or other reading matter pub-
lished in any such newspaper, magazine, periodical for the
publication of which money or other valuable considera-
tion is paid, accepted or promised, shall be plainly marked
‘advertisement.’ Any editor or publisher printing editorial
or other reading matter for which compensation is paid, ac-
cepted or promised, without so marking the same, shall, upon
POSTAL CRIMES 159

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 publica-
tions that are admitted into the United States mails as
second class matter.

This section is not unconstiutional as infringing the free-
dom of the press and depriving one of property without due
process of law. Lewis Publishing Co. vs. Morgan, 229 U.
S., 288.

This Act, in the Section immediately preceding, also pro-
vides 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.

§ 54. Libelous and Indecent Wrappers and Enve-
lopes, 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 added; by the Act of July
12, 1876, the words “lewd, obscene, or lascivious’ as ad-
jectives and the words ‘“‘delineations, terms, or language’”’ as
nouns, were inserted; 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, or any postal card upon
which any delineations, epithets, terms, or language of an in-
decent, lewd, lascivious, obscene, libelous, scurrilous, de-
famatory, or threatening character, or calculated by the
terms of manner or style of display and obviously intended
to reflect injuriously upon the character or conduct of an-
other, 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
160 POSTAL CRIMES

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 imprisoned not more than five
years, or both.”

Every decision and construction of the Act of 1888 is ma-
terial aid in understanding the present law, because, as be-
fore stated, they are practically identical.

In a consideration of postal statutes and particularly
such statutes as inhibit the use of this utility for what Con-
gress has called improper and unlawful purposes, we must
bear in mind that an unrestricted use is not one of the funda-
mental rights guaranteed by the Constitution. Warren vs.
U. S., 183 Federal, 718. It is not material whether the ob-
jectional language is true or false or whether the accused was
actuated by public spirit or private malice; hence the offer-
ing 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 calculated to
reflect injuriously upon the character of the person ad-
dressed. 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 can-
not determine, as a matter of law, that any particular de-
lineation or display is in violation of the statute. Of course,
It is not meant to here indicate that the Court may not ex-
press his opinion thereon. He always has this right.

In United States vs. Dodge, 70 Federal, 235, the proprietor
of a collection agency adopted a method of proceeding by
which, on failure of debtors to pay on first demand, a dun-
ning letter was sent through the mails, enclosed in a pink
colored envelope, and if this did not receive a favorable re-
sponse, 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 Septem-
ber 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 sta-
tute, and that whether the effect was to reflect injuriously
POSTAL CRIMES 161

upon the character or conduct of the addressee was a ques-
tion for the jury, upon a trial for the offense, for which rea-
sons the prisoner was remanded. While the Court did not
pass upon the identical question as to whether the deter-
mination 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 indictment 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 and style of display, and ob-
viously intended to reflect injuriously upon the character
and conduct of the person addressed...... To make a mat-
ter non-mailable and to constitute the offense, that the de-
lineation is calculated and obviously intended to so re-
flect, must be apparent from an inspection of the envelope
Sievert The manner of display might indicate clearly whether
the words were placed there for injurious reflection upon that
person, or for legitimate transmission of the contents of the
envelope through the mails...... Whether the display of the

words upon the envelope would support the averments of
the indictment, would be a question of fact for a jury.”

See also United States vs. Olney, 38 Federal, 328.

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 mailed; that the statute
being one constituting a criminal offense, it cannot be ex-
tended 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
defendant 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.

il
‘162 POSTAL CRIMES

The evident purpose of the statute was to prevent patrons
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 un-
covered. It is submitted that an attack upon another on a
printed page of a newspaper or circular, 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 in-
jure 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 de-
fining 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 against Burnell, 75 Fed-
eral, 824, District Judge Woolson distinguishes the Gee
case, and disagrees with it. The Burnell case was an in-
dictment 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 appeared 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 wrapper 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
POSTAL CRIMES 163

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 overspreads or over-
lays the pamphlet or paper mailed.”’

This opinion is interesting and exhaustive, and clearly up-
holds that construction of the statute which makes it an of-
fense to publish upon the outside page of a newspaper state-
ments that reflect injuriously upon the character of the ad-
dressee.

Judge Evans, in United States vs. Higgins, 194 Federal,
539, chooses and follows the Gee case rather than the
Burnell case, placing his decision upon the rule that laws
which create a crime ought to be so explicit that all men sub-
ject 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 fighting time all along ...... I will garnishee 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 aresharp. 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 violation, to wit: “Mr. Editor:
I thought that you weré 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 violations: ‘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 perform, and I see very plainly
you do not intend to pay any attention to my letters or your
agreements,” U. S. vs. Simmons, 61 Federal, 640. In United
164 POSTAL CRIMES

States vs. Boyle, 40 Federal, 664, the Court held that this
language, to wit, was not a violation: ‘Please call and set-
tle account, which is long past due, and for which our col-
lector 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 col-
lection,” 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.

Of course, when the matter is obscene, lewd, or lascivious,
then the authorities cited under Section 211 are applicable.

§ 55. Use of the Mails for Fraudulent Purposes.—
The reliability, speed, and universality of the conveniences
of the post-office establishment affords a revenue-bringing
vehicle for the unscrupulous. Many sorts of frauds and
schemes and artifices have, from time to time, flourished for
aseason. A proposition attractively stated in print, and ad-
dressed to a specific person, seems to contain much more
magnetism than spoken words or general advertising. Just
what per cent of the inhabitants 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 elements of
the last amendment with some additional words and elim-
inations that make the Act comparatively complete. The
new Section also makes the punishment commensurate with
the offense, the penalties of the old statute being entirely too
light. Section 215 reads as follows:

“Whoever, having devised or intending to devise any
scheme or artifice to defraud, or for obtaining money or
POSTAL CRIMES 165

property by means of false or fraudulent pretenses, represent-
ations or promises, or to sell, dispose of, loan, exhange, alter,
give away, distribute, supply, or furnish or procure for un-
lawful 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 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 deal-
ing 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 under-
stood as relating to such counterfeit or spurious articles, shall,
for the purpose of executing such scheme or artifice or at-
tempting to do so, place, or cause to be placed, any letter,
postal card, package, writing, circular, pamphlet, or ad-
vertisement, whether addressed to any person residing with-
in 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, pamphlet, or advertisement,
shall be fined not more than one thousand dollars, or im-
prisoned 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 de-
fraud is to be effected by opening or intending to open corres-
pondence 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 Fed-
eral, 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.
166 POSTAL CRIMES

Rimmerman vs. U. S., 186 Federal, 387; Horn vs. U. §%.,
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 seen,
because the old section differed from the new in that the old
contained the words “‘to be effected by either opening or in-
tending to open correspondence or communication with any
person, ..... or by inciting such person or any person to
open communication with the person so devising or intend-
ing,”’ which the new does not contain. The new section sim-
ply demands, (1) the formation of a scheme or artifice to de-
fraud; (2) ‘‘shall for the purpose of executing such scheme or
artifice, ..... place or cause to be placed, any letter, etc.,
Head catae to be sent or delivered by the post-office establish-
ment.” 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 contemplated, as
required by the statute, devise a scheme, within 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 de-
vises a fraudulent scheme to be effected by opening or in-
tending to open correspondence or communication with him-
self, 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 ex-
ception, 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 ad-
dressing his intended victim or victims.

The Courts have construed the new section with reference
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 ele-
ments of the statute under discussion and they are the ele-
POSTAL CRIMES 167

ments a and c, namely the devising of a scheme or artifice
to defraud, and the placing or causing to be placed for trans-
mission and delivery a letter or packet in the United States
mails. U.S. vs. Young, 215 Federal, 268; U. S. vs. Gold-
man, 207 Federal, 1002; U. S.-vs. Young, 232 U. S., 155; U.
S. vs. Maxey, 200 Federal, 1001.

Broadly speaking, the section “includes everything de-
signed to defraud, by representations as to the past or pres-
ent, 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 inten-
tional 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 misrepresentation as to some ex-
isting 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 indictment. In Foster vs. U. S., 178 Federal,
165, C. C. A., held scheme need not be repeated in second
and succeeding counts, if laid well in first and appropriately
referred to.

Actual misrepresentation is unnecessary provided the rep-
resentations that were made were intended and calculated 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, parti-
cularly if the party himself believes. Harrison vs. U. S.,
200 Federal, 662. Neither is a scheme that is visionary neces-
sarily 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. U. 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 de-
fraud, within the meaning of this section. Fed. Stats. Ann.,
5, page 976. Horman vs. United States, 116 Fed., 350,
168 POSTAL CRIMES

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 Federal, 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 ascheme 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 merchandise when received at a
price below cost or at cost, and other facts that evidence no
legitimate intent to engage in a legitimate business. United
States vs. Woodson, 35 Federal, 358; United States vs.
Staples, 45 Federal, 195. It must be borne in mind that the
intent not to pay must exist before the credit is sought—
must precede 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 of the states.”

A scheme to sell false certificates to old soldiers is a viola-
tion. Blanton vs. U. S., 213 Federal, 320. Ordering 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
POSTAL CRIMES 169

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; Schein-
berg vs. U. S., 213 Federal, 758. Selling stock in a corpora-
tion 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 rep-
resentation of excessive value, etc., is false, even though mat-
ter of opinion. United 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 establishment,
and in addition must allege that the defendant deposited or
caused to be deposited in the Post-office for mailing and de-
livery, 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 deposited
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 misdemeanor, 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 letters 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 neces-
sary, in order to make out the offense, that the defendant ac-
tually, 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, employed and
directed for that purpose, it is sufficient to meet the allega-
tions of the bill and the demands of the statute.

It should also be borne in mind in this connection that un-
der the authority of United States vs. Loring, 91 Federal, 881,
which seems to have been generally followed, it is not neces-
sary to set out all of the letters in full in the indictment, nor
to give the substance of their contents; nor is it necessary
that it should appear from the letters that they were part of
170 POSTAL CRIMES

the fraudulent scheme. The indictment may make a gen-
eral allegation that there were various and sundry and div-
ers letters deposited and caused to be deposited to divers and
sundry persons to the grand jurors unknown, if such allega-
tions be true, and then set out particularly and accurately
one letter, and if the defense desires to know the names and
addresses 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, ad-
dressed 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 de-
fendant with a view of executing his scheme to defraud.
Durland vs. United States, 161 U. S., 306. Letters, however,
which do not seem to have been written for the purpose of ac-
complishing 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, speak-
ing 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, are
admissible, and quotes in support of that doctrine, the ex-
pression 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 fraudulent scheme. It is enough if,
after having devised a scheme to defraud, the defendant,
with a view to execute it, deposits in the post-office letters
which he thinks may assist in carrying it into effect, al-
though, in the judgment of the jury, they may be absolutely
ineffective therefor.”
POSTAL CRIMES 171

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 attempted execution of a fraudulent
scheme, is the gist of offense denounced 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 re-
cite 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, followed 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 antago-
nistic decision to the Durland case, decided by the Supreme
Court, cited supra. It is true that the Miller case holds that
the indictment charged no offense because it did not charge
that the stock sold was not worth the price paid for it, but
the decision in reaching this particular point, which it de-
cides, contains many expressions that might lead the prac-
titioner to infer a dangerous broadness as to what is not com-
prehended 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
already 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
172 POSTAL CRIMES

something of value from the person to whom such representa-
tions 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 manu-
facturer, employing from one hundred to one hundred fifty
men, the plant and good will of which was worth many
thousands of dollars. The defendant represented through
the mails, for the purpose of selling this increased stock, that
the corporation desired 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 earn-
ing 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 in-
dictment 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 com-
plete statement of such a case as comes easily within the
meaning of the statute. There was a determination to in-
crease 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 were made with ref-
erence to the earning capacity of the plant, which, there-
fore, controlled the value of the stock, and made it desir-
able or undesirable. The representations made with ref-
erence 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 para-
graph 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 Federal,
page 420, and which has been the occasion of some differ-
ence of opinion, is not entered into this statute. Late de-
cisions, however, upon that old section, are the following:
POSTAL CRIMES 173

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 limitation 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. Dexter, 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.
Etheridge, 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 consoli-
dated. Emmanuel vs. U. S., 196 Federal 317.

§ 55a. Other Illustrative Cases.—A scheme to de-
fraud by means of fraudulent bounty claims for killing
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 objection of the
Government, that all evidence is to be received which tends
to refute any presumption or proof of an evil intent. There
must have been a scheme or artifice to defraud, which neces-
sarily includes the intention 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 Federal, 525,
for inducing false homestead entries upon government
lands was reversed on account of the erroneous 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 prohibit, but recognizes may be
lawfully done without prejudice or injury to the United
174 POSTAL CRIMES

States or the State, following 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 treat-
ment to cure the morphine habit. In other words, one hav-
ing 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; American School vs. McAnnulty, 187 U. S., 104.

‘An indictment which charges doctors with having pre-
tended to be skilled and eminent physicians in the treatment
of various diseases and which is insufficient in allegation,
must be attacked by demurrer or motion to quash before
verdict and unless the defendant’s character is put in issue
proof of other offenses is inadmissible and is reversible.
Dyar vs. U. S., 186 Federal, 620; U. S. vs. Smith, 222 Fed-
eral, 165; Moses vs. U. S., 221 Federal, 863.

An intent to defraud is an absolute essential and without
such an allegation an indictment is fatally defective., Black-
man vs. U. S., 186 Federal, 965. The persons must be de-
frauded. Wilson vs. U. S., 190 Federal, 427; Stockton vs.
U. S., 205 Federal, 462.

§ 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 Sept-
ember 19, 1890, gives the Postmaster General 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. Wy-
man, 129 Federal, 623, which recites exhaustively and learn-
edly cases bearing upon this question, and mentions and dis-
tinguishes the leading case of Magnetic Healing vs. Mc-
Anulty, 137 U. S., 94; 47 Law Ed., 90; Donnell Company
vs. Wyman, 156 Federal, 415; Appleby vs. Chiss, 160 Fed-
eral, 984; Putnam vs. Morgan, 172 Federal, 450. The weight
of authority under this statute seems to be that a Court will
POSTAL CRIMES 175

inquire into the evidence that was submitted to the Post-
master 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 involve
judgment and discretion, is not bound by the discretion and
judgment of the Courts, provided he have before him evi-
dence upon which to base his act.

More is not said with reference to this statute and this
interesting jurisdiction of the Post-office Department, for
the reason that its discussion does not belong in this work, it
relating to civil remedies.

§ 57. Fraudulently Assuming Fictitious Address or
Name.—tThe meat of Section 216 in the new Code was an
Amendment to the old Section 5480 of the Revised Stat-
utes, 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 fictitious,
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 de-
vice mentioned in Section 215 of the new Code, or any other
unlawful business, is made a separate section.

The same punishment, however, is carried for violations 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 assumed, 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 assume the role of a Chinese physician and
pretend to possess 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
176 POSTAL CRIMES

within the statute, to assume a fictitious name in a lawful
business.

In Tingle vs. United States, 87 Federal, 320, the Circuit
Court of Appeals for the Fifth Circuit held that the indict-
ment 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 allegation in the bill,
the Court charged the jury that they could convict the de-
fendant whether or not Aronson was a real person, and this
charge the Court held to be erroneous.

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 person, then it is thought that
the bill could not allege, and stand the test, that the name so
used for the unlawful business was in fact fictitious and false.
There should be appropriate allegations under a different
portion of the law, or rather, as the law now stands, the case
would be a fraudulent use of the mail, under Section 215, in-
stead 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 lot-
tery violations, calls our attention to the fact that the lot-
tery as a method of gambling has prevailed from the remot-
est antiquity. In England, Italy, France, Germany, Austria,
Spain, Holland, Denmark, Japan, China, Mexico, and many
of the South American Republics, 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, notably 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,
however, 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
POSTAL CRIMES 177

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 Supplement, 435, came an as-
sisting 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 practically 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 ot another, or from
another country to the United States, or from the United
States to another country. The sending of lottery matter,
as defined in the statute, which includes letters 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 vio-
lation; the sending of any such matter by private convey-
ance 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 in-
strument purporting to be or to represent a ticket, chance,
share, or interest in or dependent upon the event of a lot-
tery, gift enterprise or similar scheme offering prizes depend-
ent in whole or in part upon lot or chance; and no check,
draft, bill, money, postal note, or money order, for the pur-
chase of any ticket or part thereof, or of any share or chance
in any such lottery, gift enterprise, or scheme; and no news-
paper, circular, pamphlet, or publication of any kind con-
taining 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 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 de-
posited, 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 delivered by mail anything herein forbidden to be car-
ried by mail, shall be fined not more than one thousand dol-

12
178 POSTAL CRIMES

lars, 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 provision of this sec-
tion may be tried and punished either in the district 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 lati-
tude 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. Thestatute, 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.,
purporting to be or represent a ticket, chance, share, or interest
in or dependent upon the event of alottery, etc., would not be
sufficient to sustain a conviction where the proof only showed
the deposit of tickets, etc., evidencing a drawing that had al-
ready 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
drawing, were advertisements of the lottery, and, there-
fore, 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. Justice
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 con-
tains 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 in-
strument as described in the statute. It purports to show no
interest in or dependent upon the event of any lottery. If
the lottery has been drawn, the interest is no longer depend-
ent upon it. The condition upon which the bet or the in-
POSTAL CRIMES 179

terest was dependent has happened; the solution of the prob-
lem has already been arrived at; the bet has already 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 lot-
tery. From the statement upon the paper, the agent may
acquire the knowledge which will enable 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 Congress.”

It may, therefore, be contended that Section 213 is no
broader in the way of remedying this defect than was the
original law. The Act of March 2, 1895, still stands as the
only Act that makes it against the law to transport by pri-
vate 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 lottery 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
United States vs. Ames, 95 Federal, 453, which held that the
transportation of lottery tickets from a state to a territory
is not within the statute. In this last case, however, 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 Constitution, 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. Thereafter, 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 ef-
fectiveness 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 Divi-
sion of the Northern District of Texas. In that opinion,
Mr. Justice Harlan, after reviewing extensively the authori-
ties, 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
180 POSTAL CRIMES

only legal test as to what are to be deemed subjects of the
commerce that may be regulated by Congress, we cannot ac-
cept as accurate the broad statement that such tickets are
of novalue..... These tickets were the subject of traffic; they
could have been sold; and the holder was assured that the
company would have paid to them the amount of the prize
drawn. That the holder might not have been able to en-
force his claim in the courts of any country making the draw-
ing of lotteries illegal, and forbidding the circulation of lot-
tery tickets, did not change the fact that the tickets issued
by the foreign company represented so much money pay-
able 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, there-
fore, are subjects of commerce, and the regulation of the
carriage of such tickets from state to state, at least by in-
dependent carriers, is a regulation of commerce among the
several states.”

§ 59. What Is a Lottery or Chance?—In Horner vs.
United States, 147 U. S., 449, the Supreme Court of the
United States in effect determined that whatever amounted
to a distribution of prizes by lot was a lottery, no matter
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 comprehensive to
include any scheme in the nature of a lottery, and it may be
sufficient to say, said the Court, that this embraces the ele-
ments of procuring through lot or chance, by the investment
of a sum of money or something 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 chris-
tened, or however it may be guarded or concealed by cun-
ningly 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 determine 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 val-
uable consideration, one may, by favor of the lot, obtain a
POSTAL CRIMES 181

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 Crimes,
Section 952.

“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 delivered on the happening of any event or con-
tingency in the nature of a lottery, is a lottery ticket.”-—
aa vs. State, 68 Md., 170; Bayland vs. State, 69 Md.,
170.

**A lottery is a scheme, device, or game of hazard, where-
by, 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 hazarding 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 in-
fluence 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 investor secures
something; that is to say, even though there be no blanks.
United States vs. Horner, cited supra. So in Seidenbender vs.
Charles, 4 Serg. and Rawle, 151 (8 Am. Dec., 682), and Dunn
vs. State, 40 Illinois, 465.
182 POSTAL CRIMES

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:

“Tf it be said that in this case there are no blanks, we
answer that no material difference arises from that circum-
stance. 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; for of what impor-

tance 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:

“Tf it differs from ordinary lotteries, the difference is
chiefly in the fact that it is more artfully contrived to im-
pose upon the ignorant 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 de-
termination 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 plotting of land and the
increasing of the value of some lots arbitrarily is a violation
of this lottery statute. U.S. vs. Ridgway, 199 Federal, 287.

§ 60. Land Schemes.—One of the most universal viola-
tions and attempts to violate the lottery statute are the
various and sundry schemes for the sale and distribution 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 being some sort of an arrangement where-
by the investors are to determine which one shall secure the
important lot. This identical scheme has been denounced
by the Supreme Court of Pennsylvania in the Seidenbender
vs. Charles case, cited supra. In that case the evidence
showed that a party possessed of a tract of land on the banks
POSTAL CRIMES 183

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 thousand dollars, and two of the others had wooden
buildings thereon. While the lots abutting on the river were
peculiarly valuable, the great mass which laid back from the
river, and which were unimproved, bore no proportion to the
price at which the tracts were sold.

This scheme was denominated a lottery.

Throughout the country this and similar decisions are be-
ing 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 may secure the valuable lot.

§ 61. Issuing of Stock.—The Post-office Department
and its force of inspectors, and particularly the Assistant
Attorney General for that Department, has been most effi-
cient in rendering service to the general public by declar-
ing fraudulent a great many so-called stock concerns, in-
surance companies, building and loan associations, tontine
policy corporations, that pretend to issue stock or certifi-
cates, or to loan money at some future date to such customers
as would pay in small installments at short and stated
periods. By applying figures and reasons to the respective
plans of these fraudulent concerns, these officers of the
people determined 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 sta-
tute cited supra, and ofttimes the perpetrators have been
convicted. Such a scheme was denounced and a conviction
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 corporation on
each of which the holder agreed to pay one dollar per week,
subject to forfeiture for non-payment, and about 75 per cent
184 POSTAL CRIMES

of which payments were paid into 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 statutes,
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.

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.,
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.

§ 63. Postmasters Not to Be Lottery Agents.—
Section 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 em-
ployed in the postal service, to act as an agent for any lot-
tery, or under color of purchase or otherwise to vend lot-
tery tickets, or to knowingly send the same by mail, or to de-
liver any letter or package or postal card or circular or
pamphlet advertising any lottery, etc., which is a substan-
tial re-enactment of the old Section 3851 of the Revised
Statutes, the new section being somewhat broader and cov-
POSTAL CRIMES 185

ering more territory. In Louisiana lottery cases, 20 Fed-
eral, 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.

§ 64. False Returns to Increase Compensation.—
Section 3855 of the old statutes provided the basis for fix-
ing the compensation and salary of postmasters of the fourth
class. That statute was subsequently amended in some de-
tail 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 ascer-
tained and allowed by the Auditor of the Treasury for the
Post-office Department in the settlement of the accounts of
such postmasters, upon their sworn quarterly returns. To
guarantee fidelity in these returns and these reports, Con-
gress enacted Section 1 of the 20 St. L., page 141, which pro-
vided a punishment for any false return made by a post-
master to the Auditor for the purpose of fraudulently in-
creasing his compensation. This includes what has been
technically termed ‘“‘false cancellation; and while it is one
of the most difficult offenses to prove in the postal service,
such proof has repeatedly 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, comput-
ing 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, as-
186 POSTAL CRIMES

sist 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, be-
ing a postmaster or other person employed 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 mat-
ter 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 reported.
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 benefit to the practi-
tioner. This case simply determines that one may aid and
abet a postmaster in committing the offense, and that evi-
dence 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 cousre,
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 there-
after.

§ 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 al-
lowed the commissions, he cannot recover the same without
due process of law. United States vs. Case, 49 Federal,
270; United States vs. Hutcheson, 39 Federal, 540; United
States vs. Miller, 8 Utah, 29.

The Postmaster General may determine, under the arbi-
trary power given him, what is right and reasonable in the
POSTAL CRIMES 187

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 re-
cover money against a postmaster for false returns, is prima
facie evidence of the fact of such falseness. United 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 Fed-
eral, 270; U. S. vs. McCoy, 193 U. S., 599.

§ 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 serv-
ice, 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 de-
mand 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 pun-
ishment 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 word ‘“‘letters.”’

§ 67. Unlawful Pledging or Sale of Stamps.—To
further 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 Post-
master 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-
dicated on their faces; or sell or dispose of stamped envelopes
for a larger or less sum than is charged therefor by the Post-
188 POSTAL CRIMES

office Department for like quantities; or sell or dispose of, or
cause to be sold or disposed of, postal stamps, stamped en-
velopes, 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 post-
master, 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 dol-
lars, 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 gov-
ernment, because the use of stamps by a postmaster pro-
cured 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. William-
son, 26 Fed., 690. The new section is as strong in its in-
hibition 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 remitting 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, there-
fore, 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, speaking
POSTAL CRIMES 189

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 sale for cash. That case
further determines that an offer to a postmaster, 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 postmaster 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 Federal, 721,
Circuit Judge Lacombe, in passing upon a civil action of re-
plevin 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 uncon-
nected with the Post-office Department is not presumptively
unlawful.

§ 67a. Receiving Stolen Property, Etc.—See Sec-
tion 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 conceal-
ing 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 thousand
dollars or imprisoned not more than five years, or both;
and such person may be tried either before or after the con-
viction of the principal offender.”

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 indictment that the
190 POSTAL CRIMES

stamps had been stolen from the United States was neces-
sary to give a United States court jurisdiction, 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 Kansas, the exact names of which were to the
grand jurors unknown, and the Court held that this allega-
tion 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 person
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 Gray-
son vs. Lynch, 163 U. S., 468, does not state a rule of crim-
inal 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 follows:

“‘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 de-
liver, 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 Sup-
plement, and was Section 27 of that Act.

§ 69. Issuing Money Order Without Payment.—
Section 210 of the new Code reads as follows:

““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
POSTAL CRIMES 191

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 be-
lieved that Section 210 was intended merely for the punish-
ment 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 money-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 grievous-
ness of the offense, and all fraudulent issues, therefore, of
money orders, by postal employees, should or may be prose-
cuted under Section 218 of the new Code, as they were un-
der 5463 of the old statutes and amendments 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 different
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. U.
S., 202 U. S., 344; Gavieres vs. U. S., 220 U. S., 338.

§ 70. Counterfeiting Money Orders, Etc., and
Fraudulently Issuing the Same Without Having Re-
ceived 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 Act of the eighteenth of June, 1888, First Supplement,
593, and reads as follows:

“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 willingly aid or assist in falsely making, forging, count-
erfeiting, engraving, or printing, any order in imitation of or
purporting to be a money order issued by the Post-office De-
partment, or by any postmaster or agent thereof; or whoever
shall forge or counterfeit the signature of any postmaster, as-
192 POSTAL CRIMES

sistant 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 certifi-
cate 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 endorse-
ment thereon to be false, forged, or counterfeited, or any ma-
terial alteration therein to have been falsely made; or shall
issue any money order or postal note without having pre-
viously received or paid the full amount of money payable
therefor, 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 United
States or any officer employed, 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 pro-
cure to be transmitted or presented to, any officer or em-
ployee 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 pur-
port and tenor clauses, and it is decidedly the safer plan for
the bill to set out in hec verba the instrument, and the
pleader must take careful notice that the instrument so set
out does not differ in any respect from that portion of the
bill giving the purport of the forged instrument.

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 payable to a
certain bank, to which he at the same time wrote in the name
POSTAL CRIMES 193

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 office, con-
verting 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. Royer, 122 Federal, 844, the govern-
ment elected to prosecute a clerk in a post-office authorized
to issue money orders, who had issued money orders in pay-
ment of his private debts, under Section 4046 of the Revised
Statutes, foranembezzlement of money orderfunds. 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 depredate upon the Government funds. In
Vives vs. United States, 92 Federal, 355, Judge Pardee,
speaking for the Circuit Court of Appeals for the Fifth Cir-
cuit, with reference to the defendant’s use of money order
funds by drawing money orders without previously receiv-
ing the money therefor, and which was a prosecution for
embezzlement under 4046, said that the intention of the em-
ployee to return the money to the Government when a settle-
ment 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 signa-
ture to a receipt on a money order is a material signature in
the meaning of the law.

It may be here remarked that that portion of the statute
which relates to the forgery of a material endorsement or
signature to a money order or any receipt thereon, is the por-
tion of the law most frequently violated.

It must be continually borne in mind that the indictment
must charge, and the proof must show that the forgery 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.
194 POSTAL CRIMES

15813, the Court held that even though an indictment
charged the defendant with having forged a material en-
dorsement 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 or-
ders lawfully issued by the United States.

Judge Thayer, in United States vs. Crecilius, 34 Federal,
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 practically
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 meaning of the same

See Sections 69 and 69a. Also U. S. vs. Komie, 194 Fed-
eral, 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 en-
velopes 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 post-
age 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 pos-
session with intent to use or sell, any such forged or counter-
feited 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 water-mark of any stamped envelope, or postal
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 direction of said Depart-
ment; or shall, after such postage stamp, stamped envelope,
or postal card has been printed, with intent to defraud, de-
liver 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 re-
POSTAL CRIMES 195

ceive 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 government, 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 absence 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 indictment does not have
to charge fraudulent intent in alleging 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 sections, because the new Code itself denom-
inates all offenses felonies where the punishment may be con-
finement for a year.

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 in-
dicate that it was the intention of Congress to so denounce
in definition, and by severe punishment, and to prevent, if
possible, even experimenting in the reproduction of fac-
similes of postage stamps, envelopes, cards, etc., like those
made by the Government, because it may be argued that no
one would trouble himself to facsimile such a small article,
unless he intended to work injury. On the other hand, this
may be one of those statutes in which Congress has neg-
lected to include all of the elements of the offense, and it
thereupon devolves upon the pleader to draw his bill suffi-
ciently 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 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
196 POSTAL CRIMES

property, except as authorized by law, any money or prop-
erty 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
authorized officer or agent, shall be deemed guilty of em-
bezzlement and every such person, as well as every other
person 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 embezzle-
ment and upon the trial of any indictment against any person
for such embezzlement, it shall be prima facie evidence of a
balance against him to produce a transcript from the ac-
count books of the Auditor for the Post-office Department.
But nothing herein shall be construed to prohibit any post-
master depositing, 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 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 in-
structed or required so to do by the Postmaster General for
the purpose of remitting surplus funds from one post-
office to another.”

It supplants and takes the place of 4046 and 4053, Revised
Statutes of 1878. The prosecution frequently comprised in
one indictment against the same defendant violations of the
two old statutes, laying a count under 4046 and then a count
under 4053. These statutes are for the purpose of afford-
ing another guaranty that the government shall take no
chances whatever in the result of the judgment of its em-
ployees. 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 replac-
ing is no protection against prosecution under this statute.
Any use or appropriation or the failure to deposit, as re-
POSTAL CRIMES 197

quired 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 larceny, and
is indeed a sort of statutory larceny. The methods of use or
appropriation, therefore, denounced in the statute, are suffi-
cient to describe this particular statutory embezzlement.
In United States vs. Gilbert, 25 Federal Cases No. 15205,
the Court used the following language:

“Tt is evident that an embezzlement such as is contem-
plated 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 al-
though 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 strict-
ness 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 dis-
appointed by unexpected circumstances, and thus not only
endanger the moneys of the Government, but involve him-
self in difficulty and criminal prosecution. The law intends
that funds of this character should be kept absolutely sep-
arate and sacred, as the best method, not only of keeping the
funds themselves secure, but of guarding the officers them-
selves from temptation and delinquency. A diversion of
money order funds in any way whatever prohibited by this
section, or for any time, however short, constitutes embezzle-
ment under this Act.”

See also United States vs. Royer, 122 Federal, 844, which
applied the doctrine of refusing to permit the postal 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
198 POSTAL CRIMES

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 contend 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 Constitu-
tion which provides that in all criminal prosecutions the
accused shall enjoy the right to be confronted with the wit-
nesses 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 possession 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 description.

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, 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 embezzle-
ment of money order funds. Foust 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 U. S., 269; 40 Law Ed., 424,
must allege that the funds came into the possession of the de-
fendant in his official character and by virtue of such em-
ployment, and specifically set out the sort of employment
he was engaged in for the Government.
POSTAL CRIMES 199

§ 73. Rural Carriers Responsible Under This Sec—
tion.—In United States vs. Mann, 160 Federal, 552, Dis-
trict 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 or-
ders 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 for-
warding of money orders, while in the possession of such car-
rier, 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
tural route carriers by many of the trial courts, though
there was some difference of opinion. It became and was,
however, very necessary that such funds should be protected,
and the provision 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 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 indict-
ment in Dimmick vs. United States, 121 Federal, 638, though
upon Section 5492 rather than the one under discussion, 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 intentional 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 De-
partment, 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.”
200 POSTAL CRIMES

The indictment under this section simply contains the or-
dinary elements for the charging of statutory theft, or Com-
mon 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 in-
tent and wilfulness. An innocent use or mistaken use un-
der 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 duplici-
tous. See 67a.

§ 75. Other Offenses.—The new Code, in addition to
the offenses heretofore mentioned, creates and re-enacts sec-
tions relating to the following:

Conducting Post-office without authority: Section 179,
old Revised Statutes 3829.

Illegal carrying of mail by carriers and others: Section
180, old Section 3981.

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 Sec-
tion 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: Sec-
tion 186, old Section 3987.

Wearing Uniform of carrier without authority: Section
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.
POSTAL CRIMES 201

Using, selling, etc., canceled stamps, and removing can-
cellation marks from stamps, etc.: Section 305; old Section
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.

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 relate 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 exclusively such busi-
ness and by various statutes protects such monopoly.

§ 76. Section 230 provides that every person employed
in the postal service shall be subject to all penalties and
forfeitures for the violation of laws relating to such service,
whether he has taken the oath of office or not, and Section
231 provides that the words “‘postal service” wherever used
in this chapter, meaning chapter on offenses against the postal
service, shall be held and deemed to include the Post-office
Department.
CHAPTER V.

COUNTERFEITING AND OTHER OFFENSES AGAINST THE
CURRENCY, COINAGE AND OTHER SECURITIES.

§ 77.
78.
78a.

79.
80.
81.

Definition of Obligation and Other Securities.

Illustrative Cases.

Using Plates, Having in Possession, Similitude, Unsigned Bank-
notes.

The Neall Case—Deheuns Case—Indictment, etc.

Forging or Counterfeiting U. S. Securities.

Forging or Counterfeiting U. S. Securities and National Bank-
notes.

Confederate Money; Likeness and Similitude.

Other Securities Including State Banknotes.

Allegation of Knowledge in Counterfeiting.

Description of Obligation or Counterfeit.

Circulating Bills of Expired Corporation.

Mutilating or Defacing National Banknote.

Imitating National Banknotes; Printing Advertisements Thereon.

Imitating U. S. Securities or Printing Advertisements Thereon;
Business Cards.

Notes Less Than One Dollar, Not to be Issued.

Counterfeiting Gold or Silver Coin or Bars.

Resemblance or Similitude.

. Resemblance or Similitude Continued; Jury Question.
. Advertisements—Like Coins, etc.

Counterfeiting Minor Coins.

Making or Uttering Coins in the Resemblance of Money.

Making or Issuing Devices of Minor Coins.

Statutes Relating to Coinage, Mutilation, Debasing, Counter-
feiting of Dies, Foreign Coins.

. Counterfeiting Dies, Hubs, Molds, etc.

Counterfeiting Obligations to be Forfeited.
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 de-
fined to mean all bonds, securities of indebtedness, national

bank

currency, coupons, United States notes, Treasury

notes, gold certificates, silver certificates, certificates of de-

posit,

bills, checks or drafts for money drawn by or upon
202
COUNTERFEITING, ETC. 203

authorized officers of the United States, stamps and other rep-
resentatives of value of whatever denomination, which have
been or may be issued 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 sections
cited and treated, the words “‘obligation or other security of
the United States” are used, they will be understood to mean
and include the securities above mentioned, 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 pub-
lishing a certain false, forged, and altered United States
Treasury Warrant, was insufficient to sustain a verdict of
guilty, when the evidence showed that the defendant had
really negotiated a genuine check, drawn by an authorized
officer of the United States upon an Assistant Treasurer,
but had forged the endorsement of the name of the payee.
Of course, the indictment could have been drawn so as to al-
lege the forgery of the endorsement, 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 gen-
uine, the only forged part being the endorsement.

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
204. COUNTERFEITING, ETC.

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 Secretary of the Treasury for
the obligations and other securitites of the United States,
any similar paper adapted to the making of any such obliga-
tion or other security, except under the authority of the Sec-
retary of the Treasury, 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
counterfeit obligations or securities. In other words, the
Court held that that portion of the section included as penal
having in possession without authority, of the distinctive
paper itself or of some paper adapted to the making of Gov-
ernment 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. Barnett, 111 Federal, 369.
United States vs. Pitts, 112 Federal, 522.
TInited 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 provides as
follows: ‘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 direc-
tion of the Secretary of the Treasury for the purpose of print-
ing, any obligation or other security of the United States,
shall use such plate, stone or other thing, or any part there-
of, 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 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-
COUNTERFEITING, ETC. 205

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 in-
tent, 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, 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 security issued under the authority of the United
States, with intent to sell or otherwise use the same; or who-
ever 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, photograph, 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 juris-
diction 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 of possession, after a distinc-
tive paper has been ‘adopted by the Secretary of the Treas-
ury 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 authority of
the Secretary 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 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 similitude be-
ing 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 de-
206 COUNTERFEITING, ETC.

ceive 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 in-
dictment for the illegal issuing and possession of an unsigned
national bank note, under this statute, would not be sub-
ject to demurrer, on the mere ground that upon the face of
such note it appeared never to have been issued and there-
fore appeared not to be an obligation of the United States.
In overruling such demurrer, it was said, in substance, that
the indictment definitely enough charged that the instru-
ment 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 similitude should
be treated as true, but as the note was set forth in the in-
dictment, it may be properly said that its contents and dis-
play afforded ample evidence for submission to the jury of
the question whether it was calculated to deceive an unsus-
pecting person of ordinary prudence and incline him to ac-
cept 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 redemption of
national banks notes, shall apply to all national bank notes
that have been or may be issued to or received by any na-
tional 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 signature of the president
or vice president and cashier, it would not have been an of-
fense to pass, utter or publish an unsigned national bank
note. U.S. vs. Williams, 14 Federal, 550; U.S. vs. Sprague,
48 Federal, 828; U. S. vs. Barrett, 111 Federal, 369.

Judge Rudkin, in U. S. vs. Webber, 210 Federal, 973,
in speaking of the meaning of the word similitude or resemb-
lance 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 de-
ceive experts, bank officers or cautious men. It is sufficient if
COUNTERFEITING, ETC. 207

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 unsupecting person of ordinary ob-
servation 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 certifi-
cate 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 béen 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 vs. United States, 91
Federal, 497, the Circuit Court of Appeals for the Fifth
Circuit quashed an indictment for forgery under old Sec-
tion 5414, where the proof showed the forgery of an endorse-
ment on a draft, because the indictment failed to charge
that the genuine draft with the forged endorsement, con-
stituted 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 con-
stituted the obligation which was forged, and which, by
every averment, shows that the forgery consisted in the false
making of the endorsement, is in itself repugnant, and does
not properly lay the offense.

§ 80. Forging or Counterfeiting United States
Securities.—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
authorities upon this new section, which reads as follows:
208 COUNTERFEITING, ETC.

“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 thou-
sand 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 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 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 counterfeited; 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 circulating 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 imprisoned 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, con-
cealing, etc., of forged obligations, and which reads as fol-
lows:

“Whoever, with intent to defraud, shall pass, utter, pub-
lish, or sell, or attempt to pass, utter, publish, or sell, or shall
bring into the United States or any place subject to the juris-
diction thereof, with intent to pass, publish, utter, or sell, or
shall keep in possession or Guaceat 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:
COUNTERFEITING, ETC. 209

““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 thou-
sand dollars, or imprisoned not more than five years, or both.”

Sections 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 gov-
ernments, passing such forged notes, bonds, etc., counter-
feiting 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, rank-
ing precedents under the new sections from 156 to 161 in-
clusive, 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 States up-
held 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 counterfeiting within their juris-
diction 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 offense to be an offense against the
law of nations. In Bliss vs. United States, the Court of Ap-
peals for the First Circuit, in affirming a judgment of con-
viction against Bliss for counterfeiting a number of the notes
of the Dominion of Canada of the same series and bearing
consecutive 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.

§ 81. Forging and Counterfeiting United States
Securities and National Bank Notes.—We now return
to a discussion of Sections 148, 149 and 151, heretofore re-

14
210 COUNTERFEITING, ETC.

ferred to. In these sections, together with Section 162, will
be found practically all of the safe-guards that protect the
genuine, and prosecute for the forging or counterfeiting 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 past-
ing and changing the numerals and wording 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 obligation of the
United States or national bank currency, is within the pur-
view of the statutes. There is a nice question, though, that
hinges about the latitude and meaning of the word “imita-
tion” and the word “‘similitude” as found in these old stat-
utes and in the new ones. In Logan vs. United States, 123
Federal, 291, the defendant 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 objection
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 persons.”

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 signa-
tures have been forged, and which have been put in cir-
culation, 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 defend-
ants was affirmed.

§ 82. Confederate Money.—In United States vs. Wil-
son, 44 Federal, 751, Judge Hallett, in passing upon an in-
COUNTERFEITING, ETC. 211

dictment against Wilson for having passed a Confederate
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 counterfeit note. The note must purport
to be issued by such an association doing a banking business.
This, so far as disclosed, was not a counterfeit 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 money of the United States than to anything else.
This note, in the size and shape and color, and in the de-
nomination 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 Federal,
624, the Court saying that an ordinary Confederate States
five-dollar note does not bear to the national currency the
similitude contemplated in Revised Statutes 5430, notwith-
standing such notes are frequently accepted by mistake as
money. In this same case, the Court said that the “‘simili-
tude’’ contemplated in Revised Statute 5430 is such a like-
ness or resemblance as to be calculated to deceive an honest,
sensible, and unsuspecting man of ordinary care and obser-
vation, when dealing with a supposed 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 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 re-
sembled 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
212 COUNTERFEITING, ETC.

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 securi-
ties that it could be used to deceive a person of ordinary in-
telligence, who is acting with ordinary care in a business
transaction. The resemblance is sufficient 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 originally
issued by a duly authorized state bank, which was a legal
note at the time of its issuance, but afterwards became ut-
terly 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 obligation of the United States.
It is not thought that this is good law. Congress certainly
has no authority to prevent 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 likeness 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 in-
solvent and worthless, but which was alleged in the indict-
ment to be in the possession of Conners for 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 Arch-
bald, in passing upon a case which was based upon the de-
COUNTERFEITING, ETC. 213

fendant passing a genuine note, which had theretofore 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 simula-
tion, 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 distinguishing 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
existence; notwithstanding which, if anyone desires to put
out notes or bills to pass as money, there is nothing to pre-
vent it, to say nothing of being charged with counterfeiting,
if they happen ‘to prove worthless. ........ The Federal
Government is only 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 con-
fined. It cannot, indeed, be extended further, without en-
trenching 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 being
highly penal, and being given life only when there is evil in-
tent, make it absolutely necessary that the indictment al-
lege, and the proof show, either by circumstantial or direct
evidence, the intent to defraud in making, forging, or alter-
ing, and the knowledge of such falseness, before the passing
is unlawful. The Circuit Court of Appeals for the First
Circuit, in Gallagher vs. United 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 passed. 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
214 COUNTERFEITING, ETC.

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, in-
tent 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 de-
fendant 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 statements, etc., etc. In United States vs.
Carll, 105 United States, 611, the Supreme Court held that
the allegation knowingly and wilfully was absolutely neces-
sary to the validity of the indictment.

§ 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 particular kind of
obligation, the denomination of such obligation, the allega-
tion 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 fea-
tures of the front and back of the bill or security. Of course,
it is not meant to say that pictures or impossible delinea-
tions, 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 incorrectly describe the alleged counterfeit 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 al-
lege and describe as well as the circumstances will permit, U.
S. vs. Howell, 64 Federal, 110.

§ 86. Circulating Bills of Expired Corporation.—
Section 174 of the new Code practically re-enacts Section
COUNTERFEITING, ETC. 215

5437. We have seen that under ordinary circumstances, un-
less there be some fatally misleading similarity, imitation, 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 obligation or bill or check
or draft by any officer of an expired banking corporation.
The statute, of course, does 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 there-
in denounced was liable to a penalty of fifty dollars, recover-
able 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 statute, the prose-
cution 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, cir-
culate, 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 is-
sued under any act of Congress, or to write, print, or other-
wise impress upon any such note, obligation, or security, any
business or professional card, notice, or advertisement, or
any notice or advertisement, or any matter or thing what-
216 COUNTERFEITING, ETC.

ever. Whoever shall violate any provision of this section
shall be fined not more than one hundred dollars, or im-
prisoned not more than six months, or both.”

The new section becomes an offense wherein the penalties
are recovered by the public prosecutor through indictment
or information. Under the old statute, the offender was
liable to a penalty of one hundred dollars, recoverable on the
suit of the informer, one-half of which went to the informer.
Under the authority of United States vs. Laescki, 29 Fed-
eral, 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 recovered by indictment at the instance of the
Government.

This section is intended alone for the purpose of protect-
ing national bank notes, and does not, by construction or
otherwise, relate to the protection of any other government
security or obligation. The statute really contains two of-
fenses: 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 ad-
vertisement upon one of the circulating 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 Print—
ing Business Cards on Them.—Closely akin to the sec-
tion 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, cir-
culate, or use any business or professional card, notice,
placard, circular, hand-bill, or advertisement, in the like-
ness 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 Con-
gress heretofore passed or which may hereafter be passed;
or to write, rant or otherwise impress upon any such in-
strument, obligation, or security, any business or profes-
sional card, notice, or advertisement, or any notice of ad-
vertisement of any matter or thing whatever. Whoever shall
violate any provision of this section shall be fined not more
than five hundred dollars.”
COUNTERFEITING, ETC. 217

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 Federal, 699,
governed. The new section authorizes prosecution by in-
formation or indictment, and by the government, instead of
waiting for an informer to move. This statute, like the pre-
ceding, protects from defacement 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 ef-
fect January 1, 1910. This section reads as follows:

‘‘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 imprisoned 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 punish-
ment, because the same is in the discretion of the Court un-
der 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 sec-
tion. 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 circulate as
money. That decision has since been followed, directly
and persuasively, in Hollister vs. Merchant Institute, 111
U. S., 63; United States vs. White, 19 Federal, 724; in re
218 COUNTERFEITING, ETC.

Aldrich, 16 Federal, 370; United States vs. Rousopulous, 95
Federal, 978; Zion 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 mean that
individuals or business concerns should issue, for the pay-
ment of help, any sort of a token that the employees 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 con-
cerns.

§ 91. Counterfeiting Gold or Silver Coins or Bars.—
Without substantial alteration, old Section 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 counter-
feited, or shall willingly aid or assist in falsely making, forg-
ing, or counterfeiting, any coin or 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 as-
say offices of the United States, or in resemblance or simili-
tude of any foreign gold or silver coin, which by law is, or
hereafter may be, current in the United States, or are in ac-
tual 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 in-
tent 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 de-
fraud any body politic or corporate, or any person or persons
whomsoever, 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 alleg-
ing 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 un-
necessary, because the law presumes that one who makes
has knowledge of its falseness. U.S. vs. Otney, 31 Federal,
COUNTERFEITING, ETC. 219

68; U. S. vs. Bicksler, 1 Mackey, 341; U. S. vs. Peters, 2
Abb. (U. S.), 494; U. S. vs. Russell, 22 Federal, 390. When,
however, the charge is for passing, knowledge must be alleged
and shown. Of course, such knowledge may be shown by
either direct or circumstantial 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.

§ 92. Resemblance or Similitude.—The same diffi-
culties 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 count-
erfeit, within the meaning of a criminal statute, unless there
appeared to be some resemblance or similitude and an ef-
fort to make such resemblance and similitude. It would
seem to be the better public policy to accept the test pre-
scribed 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 deceive 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 follow-
ing words, to wit: “If the spurious article has not a resem-
blance strong enough to deceive persons exercising ordinary
caution, then the passing is not a crime,” as cited in and sup-
ported 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:

“Tt 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, though the counterfeit would

not deceive a person who was expert, or has particular ex-
perience in such matters.”’

See also U. S. vs. Abrams, 18 Federal, 823; U. S. vs. Rus-
sell, 22 Federal, 390. In United States vs. Lissner, 12 Fed-
eral, 840, the Court held that the removal of an appreciable
amount of the silver from a coin, which was replaced with an
inferior metal, amounted to counterfeiting.
220 COUNTERFEITING, ETC.

In United States vs. Owens, 37 Federal, 112, District
Judge Hammond held that in a prosecution under a general
statute of the sort under discussion, it was not essential for
the indictment to aver that the alleged counterfeits 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
providing 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 averment that there
is, or was, outstanding, authorized by law, genuine obliga-
tions of the sort the alleged imitation was intended to be a
forgery or counterfeit.

An indictment under this section must aver the intention
to defraud, but it need not specify the person, if, as a matter
of fact, the grand jury does not know in particular, and the
indictment may, therefore, allege that the forging and hav-
ing 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 uttering, the indictment should al-
lege the intent to defraud the person upon whom the coin
was passed. Whether for having in possession or for pass-
ing, there must be, as above stated, an allegation of knowl-
edge 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-
gins vs. U. S., 214 Federal, 970. Similitude and resem-
blanceisajury question and must be submitted by the Court
to the jury. U.S. vs. Weber, 210 Federal, 973. See Sec-
tions 78 and 78a. The meaning of similitude is that the
counterfeit must resemble the genuine. Whether it does isa
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
COUNTERFEITING, ETC. 221

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 intent 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 coun-
try 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 illustrat-
ing numismatic and historical books and journals and the
circulars of 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:

“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 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
foreign place, or have in his possession any such false, forged,
or counterfeited coin, with intent to defraud any person
whomsoever, shall be fined not more than one thousand.
dollars and imprisoned not more than three years.”

This statute, it will be noticed, includes all of the elements
and ingredients, both with reference to allegation and proof
222 COUNTERFEITING, ETC.

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 indictment, therefore, which
charged the forging and counterfeiting of minor silver coin-
age 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, relate 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 the use and purpose of cur-
rent 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 large in-
dustries, that pay their labor, and thus enforce a practical
serfdom, with checks or due bills or trade vouchers which
pass as current money in the camp or town that such in-
dustry owns or dominates. The fact part of the statute is
found in the words “intended for the use and purpose of cur-
rent money,” and, of course, this can be made to appear
either by direct or circumstantial testimony. 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
COUNTERFEITING, ETC. 223

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 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.”

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 obligations 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 likeness 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 token as money,
which must be charged, proven, and found, as other essential
facts in criminal cases.

§ 96. Other Statutes Relating to the Coinage.—
Section 165 takes the place of the old Section 5459, as amend-
ed by the Act shown at page 579 of the Second Supplement.
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 accoin. If,
however, there be a mutilation, for the purpose of defraud-
ing 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.
224 COUNTERFEITING, ETC.

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 authority
from the Secretary of the Treasury,”’ makes it necessary that
the indictment must aver the want of such authority and a
general averment that the die, hub or mold was unlawfully
and feloniously made by defendant is not sufficient. Wroc-
lawsky vs. U. S., 183 Federal, 312.

Sections 169 and 170 of the Criminal Code do not con-
tain the words ‘‘Secretary of the Treasury” but do contain
the words “‘without lawful authority.” It would appear that
an indictment without the words “without lawful author-
ity’? 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 prop-
erty as belonged to the Government. It might be that this
proof could be made by a duly commissioned secret serv-.
ice 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.

§ 97. Counterfeit Obligations, Etc., to Be Forfeited.
—By the terms of Section 172, which reads as follows:
COUNTERFEITING, ETC. 225

‘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 authorized
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 re-
quest by any such authorized agent of the Treasury Depart-
ment, 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 material,
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.

§ 98. Search Warrant.—In aid of the above statute,
and particularly for the suppression of all sorts of counter-
feiting, we have Section 173 of the new Code, in the follow-
ing 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 men-
tioned 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 manu-
facture of counterfeit money, or the concealment of counter-
feit money, or the manufacture or concealment of counter-
feit obligations or coins of the United States of or any foreign
government, or the manufacture or concealment 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 govern-
ment, or of any bank doing business 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 gov-
ernment, is being carried on or practiced, and there search

15
226 COUNTERFEITING, ETC.

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 counterfeit 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 leav-
ing out of the provision that a search warrant may be served
or acted upon only in the day-time. Under the new law, offi-
cers may act under the search warrant, when issued as there-
in provided, at any time, unless, perchance, the Constitu-
tional prohibition against unreasonable searches and seizures
may be read into the statute, and it doubtless is.
§ 99.
100.
101.
102.
103.

103a.

104.
105.

105a.
105b.

106.

106a.
106b.

107.
108.

108a.

109.
110.
111.
112.

112a.

113.
114.
115.

115a.

116.

117.

118.
119.
120.
121.
122.
123.

123a.
124.
125.

CHAPTER VI.

OFFENSES AGAINST PUBLIC JUSTICE.

Perjury.

Form of Oath Immaterial.

Competent Tribunal, Officer, etc.

Illustrations of Successfully Laid Perjury.

Materiality and Willfulness.

Materiality Continued.

Sufficiency of Indictment.

Proof.

Proof Continued.

Other Cases.

Subornation of Perjury.

Attorney Suborning.

Elements of Subornation.

Stealing or Altering Process, Procuring False Play, etc.
Obstructing Process or Assaulting an Officer, etc.

Advice to Avoid Service of Process May Be Obstruction.
Destroying or Stealing, etc., Public Records.

Destroying Records by Officer in Charge.

Forging Signature of Judge, etc.

Intimidation or Corruption of Witness or Grand or Petit Juror or
Officer.

Illustrations of Intimidation.

Conspiring to Intimidate Party, Witness or Jury.

Attempt to Influence Jury.

Allowing Prisoner to Escape.

Applies to State Jailer.

Rescuing, etc., Prisoner, etc.; Concealing, etc., Prisoner for Whom
Warrant has been Issued.

Rescue at Execution; Rescue of Prisoner and Rescue of Body of
Executed Offender.

Extortion by Internal Revenue Informers.

Misprision of Felony.

Bribery.

Bribery of a Judge or Judicial Officer.

Judge or Judicial Officer Accepting Bribe, etc.

Juror, Referee, Master, United States Commissioner or Judicial
Officer, etc., Accepting Bribe.

Indictment—Who is Officer.

Witness Accepting Bribe.

Members of Congress Accepting Bribes, etc.

227
228 OFFENSES AGAINST PUBLIC JUSTICE

§ 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 authorizes an oath to be administered, that he
will testify, declare, depose, or certify truly, or that any writ-
ten testimony, declaration, deposition, or certificate by him
subscribed, is true, shall wilfully and contrary 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 wil-
ful and corrupt giving, upon a lawful oath, or in any form al-
lowed by law to be substituted for an oath in a judicial pro-
ceeding or course of justice, of false testimony material to
the issue or matter of inquiry.

§ 100. Form of Oath Immaterial.—An oath, as un-
derstood in prosecutions under this statute, is one’s solemn
asseveration, uttered in an appeal to the Supreme Being, un-
der the sanction of his religion, that a thing stated or to be
stated by him is true, made to a civil officer authorized to ad-
minister 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 him-
self 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 unusual mode, though not conscien-
tiously opposed to swearing on the Gospel, and depose false-
ly, he subjects himself to prosecution for perjury. See Clark,
Bishop, and Wharton on Perjury. In United States vs.
Mallard, 40 Federal, 151, the Court held that the affiant,
being unable to write, the Commissioner reduced his state-
ment 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
evidence of a notary public showed that he had used a form
OFFENSES AGAINST PUBLIC JUSTICE 229

substantially as that required by the local state statute, in
swearing a witness, and the Court held that the oath was suffi-
cient to sustain a verdict of guilty of perjury.

§ 101. Competent Tribunal, Officers, Etc.—Hav-
ing been satisfied that the person took an oath in some form
recognized as religiously binding, the next question under 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 administered. Un-
der the Common Law, the false testimony must be in a
judicial proceeding, or in the course of justice; but the statute
under consideration includes much more than the Court-
house testimony and oath. It does not, however, include
every affidavit or declaration. In United States vs. Bab-
cock, 4 McLean, 113, it was held that an oath administered
to a witness by the Clerk of the Circuit Court, as to the dis-
tance 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 per-
jury 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 home-
stead 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 prose-
cution for perjury.

In United States vs. Howard, 37 Federal, the facts showed
that the defendant entered a homestead claim, and on appli-
cation to commute his entry to a cash entry, he made affi-
davit that he had actually moved on the land in December,
etc., taking his oath before a Judge of Probate. The statute
did not authorize a Judge of Probate to administer such an
oath; and the Court, upon demurrer, held the indictment to
be fatally defective, upon the proposition that the defend-
ant 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 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
230 OFFENSES AGAINST PUBLIC JUSTICE

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 the Land
office. Judge Paul, in United States vs. Law, 50 Federal,
915, held that Section 778 of the Revised Statutes, which
authorized notaries public to administer oaths in all cases in
which Justices of the Peace had power to administer them,
gave no power to administer an oath in an investigation by
the Post-office Department, as to the alleged loss of a regis-
tered 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 investigation. Before the Act
of February 26, 1881, a notary public had no authority to
administer oaths to officers of national banks for the verifica-
tion 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 be-
fore a Commissioner of the Circuit Court in taking bail,
where the laws of the State do not authorize the State offi-
cers 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 affi-
davit under Section 6 of the Oleomargarine Act, which re-
quires 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 viola-
tion, 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 prosecu-
tion for perjury, and an indictment so laid was quashed by
Judge Brown.

§ 101la. Oath Must Be Authorized.—A perjury can-
not 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
OFFENSES AGAINST PUBLIC JUSTICE 231.

affidavit made by a homestead claimant in pursuance 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 administrative functions and that
under a statutory power to make regulations an adminis-
trative officer could not abridge or enlarge the conditions im-
posed by statute.

The bankruptcy statute authorizes the making of schedules
under oath and the examination of the bankrupt and vari-
ous other under-oath proceedings, and perjury 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. Rosenstein, 211 Federal, 738; oaths made in
the various steps of a patent application are corrupt. Pat-
terson vs. U. S., 202 Federal, 208; a notary public is a com-
petent officer or tribunal and authorized to administer
oaths. Patterson vs. U. S., 202 Federal, 708. But the affi-
davit required under Section 4886 by an inventor may not be
enlarged by the Commissioner 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 ref-
erence to concealed or suppressed articles which were sub-
ject 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 Federal, 65.

A United States Commissioner is authorized to administer
oaths as demanded by this statute. Cohen vs. U. S., 214
Federal, 23.

§ 102. In the following cases, perjury has been success-
fully 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. Hear-
ing, 26 Federal, 744.

False oath under the Timber Culture Act, which author-
ized the oath to be administered in the District where the
232 OFFENSES AGAINST PUBLIC JUSTICE

land is situated. United States vs. Madison, 21 Federal,
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. Bailey, 9 Peters, 238.

Also where oath is administered by state officer authorized
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 support
a pension claim. United States vs. Boggs, 31 Federal, 337.

An affidavit made before a notary public, in support of an
application for pension. Noah vs. United States, 128 Fed-
eral, 270; also Williamson vs. United States, U. S. pupteme
Court, October Term, 1907.

Officer of the General Land Office of the United States,
hearing a contest with respect to a homestead entry, in ac-
cordance with the rules promulgated by the Interior De-
partment, constitutes a competent tribunal. Caha vs.
United States, 152 U. S., 211.

A verification of a cashier of a national bank, of a report
of the condition of the bank. United States vs. Bartow, 10
Federal, 873.

Judge Speer, in United States vs. Hardison, 135 Federal,
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, he was properly
charged with perjury, even though the oath 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 him-
self to be the original, first, and sole inventor of the device for
which the patent is sought, is of a material matter, and con-
stitutes 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.
OFFENSES AGAINST PUBLIC JUSTICE 233

In Brace vs. United States, 149 Federal, 871, a land affi-
davit is sufficient, as the foundation for a perjury prosecu-
tion.

Naturalization affidavits, in Schmidt vs. U. S., 133 F.,
257, and U. S. vs. Dupont, 176 F., 823.

§ 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 testimony,
upon a collateral issue, will not sustain perjury, and neither
will mistake or innocent falseness make one guilty of the
offense.

It is sufficient to charge generally that the false testimony
was in respect to a matter material to the issue, without set-
ting 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 ma-
teriality will not save the indictment. 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 material. 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 appears
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 themselves show ma-
teriality, and in the absence of such showing the indictment
would be held defective. Complying with this rule, a new
indictment was drawn in that case and it was subsequently
affirmed in Hogue vs. U. S., 192 Federal, 918. I am firmly
of the opinion that it is the law as supported by the vast ma-
jority of decisions that the indictment must allege the ma-
teriality of the statement complained of which may be done
by a simple allegation or by pleading the facts from which
234 OFFENSES AGAINST PUBLIC JUSTICE

the Court may determine 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 contended
for here, that is to say, that it must be alleged in the indict-
ment 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.
Rhodes, 212 Federal, 518; Markham vs. U. S., 160 U. S.,
325. If an indictment alleges materiality 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 materiality is sufficient. Baskin vs.
U.S., 209 Federal, 740; Hendricks vs. U. S., 223 U. S., 178.

§ 104. Sufficiency of Indictment.—As before noticed,
great particularity was required at Common Law; and while
proceedings of the Federal Courts are assimilated to the Com-
mon Law forms, all Federal crimes are statutory, and the
Common Law rules in passing upon the sufficiency of a per-
jury 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 statutes, 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 adminis-
ter 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, deposition, or certificate, other than
as hereinbefore stated, and without setting forth the com-
mission or authority of the court 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 apprise the accused
OFFENSES AGAINST PUBLIC JUSTICE 235

with reasonable certainty of the offense for which he is
sought to be punished, and state the substance of the con-
troversy upon which the false oath was taken, specify the
Court or officer by whom it was administered, aver or show
that such Court or officer had authority to administer an
oath, allege the falsity of the oath, and assign perjury there-
on. Noah vs. U. S., 128 Federal, 270; U. S. vs. Cuddy, 39
Federal, 696; U. S. vs. Walsh, 22 Federal, 622; Markham
vs. U.S., 160 U.S., 319, 40 Law Ed., 441, 30 Cyc., 1425. This
section demands that the oath must have been wilful, and
an allegation 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 elements of
the crime of perjury, evidence to prove such issues goes to
the very substance of the offense, and is, therefore, admis-
sible. 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 per-
jury were committed by one in his own defense in the trial
of a criminal case, the indictment and judgment would be
admissible, not for the purpose of showing that the defend-
ant had been convicted 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 considera-
tion 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 judg-
ment of conviction of perjury, because he had admitted the
judgment in the original case for all purposes, and without
limiting it. Wharton, Criminal Evidence, Section 602a.
The same rights that exist in favor of the prosecution to
show the corrupt motive and wilfulness 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 witnesses,
or by one witness and corroborating circumstances, and the
236 OFFENSES AGAINST PUBLIC JUSTICE

jury should be informed, in some part of the instructions, that
before they can convict, the fact that the oath was false must
be shown to their satisfaction in such way; and it is thought
in this connection that the instructions must also some-
where 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 witnesses or by one wit-
ness with corroborating circumstances. Kahn vs. U. S.,
214 Federal, 54; Allen vs. U. S., 194 Federal, 664.

§ 105d. Other Cases.—Perjury committed during the
trial of 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 be-
half wherein he was acquitted, but the government should
not institute a prosecution for perjury on substantially the
same evidence presented on the first trial.

In that opinion the Court mentions authorities supporting
the position that one may be indicted for swearing falsely
on his own trial, and also cites authorities against the cor-
rectness 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 denounced 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 judgment is conclusive in
favor of such person on the subsequent 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
verdicts 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 237

§ 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 5393. An in-
dictment 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. Babcock vs.
United States, 34 Federal, 873; United States vs. Thomp-
son, 31 Federal, 331. In United States vs. Dennee, 3 Woods,
(U. S.) 39, the Court held that an indictment must allege
that the defendant knew that the testimony which he in-
stigated the witness to give was false, and the defendant
knew that the witness knew that the testimony she was in-
stigated to give was false. The same particularity and accu-
rateness is required in an indictment under this section, and
the same general law relates thereto, as under that for per-
jury. The following cases may be interesting:

. vs. Evans, 19 Federal, 912.

. vs. Howard, 132 Federal, 325.

. vs. Cobban, 134 Federal, 290.

. vs. Brace, 144 Federal, 869.

U. S. vs. Boren, 144 Federal, 801; 30 Cyc., at page 1440,
gives the following elements of an indictment for suborna-
tion, with supporting authorities, which it is thought is the
law:

eade
NNNnNMN

“An indictment for subornation of perjury must state all
the essential elements constituting the crime of perjury, as
well as of subornation 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 know-
ingly and wilfully procured another to swear falsely; that
the party did knowingly swear falsely; that defendant knew
that the 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 perjurer
and the suborner may both be included in it. Common-
wealth vs. Devine, 155 Mass., 224; 29 N. E., 515.
238 OFFENSES AGAINST PUBLIC JUSTICE

§ 106a. Attorney Suborning.—An attorney who ad-
vises a witness to testify falsely before a United States Com-
missioner in order that she might assist to obtain the dis-
charge 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 in-
duces two entrywomen to make false affidavits to the settle-
ment, residence and cultivation of the lands as required by
Section 2291 of the Revised Statutes. Hallock vs. U. S.,
185 Federal, 424.

§ 1065. Elements of Subornation.—1. A _ witness
must have testified falsely knowing or believing the testi-
mony to be false. (2) The accused must have known or be-
lieved 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 witness to do so. Hal-
lock 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 subornation of perjury. Bis-
hop 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 penalties of fine
and imprisonment. The new section reads as follows:

““Whoever shall feloniously steal, take away, alter, falsify,
or otherwise avoid any record, writ, process, or other pro-
ceeding, 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
imprisoned 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
against whom such judgment is had or given.”
OFFENSES AGAINST PUBLIC JUSTICE 239

Most of the annotators cite United States vs. Crecilius,
34 Federal, page 30; Barber vs. United States, 35 Federal,
886, and 5 Attorney General’s Opinion, 523.

The two first cases contain practically no assistance, by
decision or argument, for the construction of the statute.
In one of them the word “alter’’ is treated at some incon-
siderate length. Anderson’s Dictionary of Law defines the
word alter to mean “to make a thing different from what it
was.” The definition in the Century Dictionary is prac-
tically 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, thought-
less, or mistaken alteration or falsification an offense. The
charge must include an unlawful and felonious alteration or
falsification. *

The statute also includes the acknowledgment of any recog-
nizance 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 Sec-
tion 5398 in the 1878 statutes. The new section, which
reads as follows:

“‘Whoever shall knowingly 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. warrant, 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, know-
ing him to be such officer, or other person so duly authorized,
in serving or executing any such writ, rule, order, pro®esss
warrant, or other legal or judicail writ or process, shall be
fined not more than three hundred dollars, and imprisoned
not more than one year,”

contains some interpolated phrases that seem to strengthen
and broaden the old statute. In other words, under the new
statute, the words, ‘‘or other person duly authorized” would
protect any person who happened to be a messenger convey-
ing any Court process, though such person would not be an
officer of the United States, within the meaning of the de-
cisions, which requires a person to have been nominated and
commissioned by the Executive Department. So also, the
240 OFFENSES AGAINST PUBLIC JUSTICE

words, “or any other legal or judicial writ or process’’ are
placed in the new statute; and to meet that line of decisions
which has held in contempt proceedings that a United States
Commissioner does not hold any United States Court, and
is, therefore, not a Court, or Judge, the statute specially in-
cludes 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. Necessarily, one who, by
mistake or without knowledge, obstructed 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 resisted 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 distinction is drawn in the following words:

“Undoubtedly, in judicial proceedings, an ‘order’ as dis-
tinguished from a ‘judgment’ is often defined as one reduced
to writing and entered 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 or-
der of a Court made before it is, or can be, written out in the
records of the Court by the Clerk. When written out, the
writing becomes a record of the order, and is evidence of it.
Orders are almost daily given to the Marshal concerning mat-
ters to be performed in the presence of the Court, and they
are as constantly executed before being written out. In-
deed, 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 in-
cludes written, as well as unwritten orders, and there is no
reason in the policy 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 necessity for making it an
offense to resist the execution of a lawful unwritten order,
brought distinctly and authoritatively to the notice of the
offending party, as for making it an offense to resist the
OFFENSES AGAINST PUBLIC JUSTICE 241

execution 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, war-
rant, 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 pro-
cess, warrant, writ, rule, or order was knowingly and wil-
fully obstructed or interfered with. United States vs. Tinkle-
paugh, 3 Blatchf., 425. If the Tinklepaugh case seems in a
measure to conflict with the Terry case, reason and public
justice would seem to demand that the Terry case be the
ranking authority.

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 individuals, know-
ingly and determinedly, in the way of the officer who is at-
tempting to serve the writ or process, would be within the
decisions, and within reason, an obstruction which would
come within the statute. Such was the construction used by
the Court in charging a grand jury in 2 Curtis, 637; 30 Fed-
eral Cases, No. 18250. Obstruction must, therefore, under
the authorities, include not only resistance but all impedi-
ments or opposition or obstacles, as outlined in the case of the
United States vs. McDonald, 8 Biss., 439; 26 Federal
Cases, No. 15667. The lexicographers, in treating the word
“obstruct,” 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, there-
fore, 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 personal violence. Threats
by a person in possession is a violation, as has been deter-
mined in United States vs. Lowry, 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 execution of a writ of possession by re-
fusing to yield possession, and by threats of violence, he has
committed an offense against this statute. United States
vs. Lowry, 2 Wash., 169; 26 Federal Cases, No. 15636. .

16
242 OFFENSES AGAINST PUBLIC JUSTICE

Under this statute, a state jailer who holds Federal prison-
ers 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 Federal, 284, in construing an indict-
ment under this section, there can be no difficulty at arriv-
ing at its lawful essentials and ingredients. The allegation
of knowledge. can be included generally, it is thought, in
the words knowingly and wilfully in the first part of the bill,
for they will, therefore, be construed to apply to each of the
necessary 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 repeated in
the body of the bill, with reference to the process 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 attempting to serve the writ or order
was an authorized person, and really had a writ or order
from a competent tribunal or Court, as the case 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 prosecution 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 caus-
ing the arrest or imprisonment of a person, was entitled 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 Sec-
tions 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
OFFENSES AGAINST PUBLIC JUSTICE 243

the dictionaries and as found in the decisions of the Courts.

Of course, there is no offense when one resists unauthorized
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 Jaw of nations; third, offenses against the king
and Government; fourth, offenses against the common-
wealth, as against public justice, public peace, public trade,
public health, public economy; fifth, offenses against in-
dividuals—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 resisting arrest or pro-
cess, obstructing officers, rescue, escapes, preventing at-
tendance, briberies, perjuries, and contempts, etc. Mr.
Bishop says that ‘‘no government is perfect, and some are
simply terrible, but the worst is immeasurably better than
none.’ To interfere, therefore, 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 subpoena
is guilty of impeding the administration of justice. Heinz
vs. U. S., 181 Federal, 323.

§ 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, re-
move, 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
244 OFFENSES AGAINST PUBLIC JUSTICE

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. Wherever 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 United 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 the Act was for the specific
purpose of the protection of records, and did not carry pun-
ishment for mere theft 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 Sec-
tion 5403.

It must be borne in mind, however, that the old Common
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, including all papers that are
filed, whether such papers be accurately or inaccurately
drawn. To this purpose and construction is the case of
McInerney vs. United States, 143 Federal, 729, by the Cir-
cuit Court of Appeals for the First Circuit. In that case, the
Court held in substance 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
contemplates a reasonable construction, in aid of the pur-
poses of the Act, and Courts should adopt that sense of the
words which harmonizes best with the context, and promotes
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
OFFENSES AGAINST PUBLIC JUSTICE 245

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
destroying a record of a Court cannot be defeated by show-
ing that the record was technically imperfect or incorrectly
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. Peck, 138
N. Y., 386; ex parte Tongue, 29 Oregon, 48; Georgia vs. Jen-
nings, 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, re-
move, mutilate, obliterate, falsify, or destroy any such re-
cord, proceeding, map, book, document, paper, or thing,
shall be fined not more than two thousand dollars, or im-
prisoned 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.”

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 neces-
sary, 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 Govern-
ment 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 re-
sponsibility for the protection and preservation of the person
246 OFFENSES AGAINST PUBLIC JUSTICE

or thing in custody; and a document in a public office in the
general 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.”” Under
the old section, an intent to injure or alter the rights or in-
terests of another, or an effect to so injure or alter some of
them, was essential to a fraud, and in the absence of suchin-
tent, attempt, and effect, an act could not be done fraudu-
lently under that section. Martin vs. United States, 168 Fed-
eral, 198. Under the instant section, however, fraudulent
intent is not an ingredient. This section, like the preceding,
denounces the acts therein specified when they are wilfully
done; that is, when they are committed with the specific
intent, as defined in McInerney vs. United States, 143
Federal, 729, cited and discussed supra.

Under the authority of Martin vs. United States, an in-
dictment drawn in the language of the statute would be in-
sufficient.

§ 111. Forging Signature of Judge, Etc.—Section 130
of the new Code re-enacts Section 5419 of the old Statutes,
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 signature or seal, for the purpose of
authenticating any 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 seal to be false or counter-
feit, 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 er
parte Parks, 93 U. S., 18.
OFFENSES AGAINST PUBLIC JUSTICE 247

§ 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 incorporat-
ing 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 in-
fluence, 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 or other pro-
ceeding before any United States Commissioner or officer
acting as such by threats or force, or by any threatening let-
ter 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 in-
timidation 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 judgment of a jury and Court, within
the purview of the statute, and which would, if left unpun-
ished, result in a perversion or trammeling of our courts,
witnesses, officers, 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 indictment 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 induce other persons
to have knowledge of facts in a civil case which would be ma-
terial 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 ar-
248 OFFENSES AGAINST PUBLIC JUSTICE

ranged 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 viola-
tion of this law may consist in preventing a litigant from
learning facts which he might otherwise learn, and in thus
preventing him from deciding 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., 419. The case
gives excerpts from the indictment. The following proposi-
tions are announced in the case, which must be recognized
and adhered to in drafting indictments:

1. There must be a specific allegation of an intent to ob-
struct 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 in-
dictment must, therefore, contain the words knowingly and
wilfully. The general doctrine of the penal law that ignor-
ance of the law constitutes no defense to an indictment for
their violation, is a rule that has no application here. Knowl-
edge 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 Petti-
bone 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 be-
fore anyone could be said to have endeavored to corruptly
influence a witness under that Section, he must have known
that the witness had been properly designated as such.
Under this authority, the designation of a witness by the
District Attorney, as the including of the name of the wit-
ness in the complaint, or in the grand jury docket, or by is-
suing a subpoena therefor, would be, it seems, sufficient.
OFFENSES AGAINST PUBLIC JUSTICE 249

In United States vs. Kee, 39 Federal, 603, the Court in-
structed the jury that the defendant would be guilty of violat-
ing 5399, when he beats one summoned as a witness before a
United States Commissioner, for the purpose of intimidating
or influencing him in giving his testimony, but if the defend-
ant did not know that the one was a witness before the United
States Commissioner, 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 forci-
bly obstructing or impeding an officer of the customs in the
discharge of his duty that the object of the party was per-
sonal 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, 130; 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 committed un-
der 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 carry-
ing of weapons into a Court room, while Court was in session,
and threatening the life of the lawyer and counsel engaged in
conducting the litigation was an offense under this statute,
as was also the assaulting of a commissioner in United States
vs. McLeod, 119 Federal, 416.

Under the authority of United States vs. Thomas, 47
Federal, 807, and United States vs. McLeod, 119 Federal,
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 of 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, thatas 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 de-
fendant could not be prosecuted under that section. In this
250 OFFENSES AGAINST PUBLIC JUSTICE

connection, also may be cited ex parte Robinson, 19 Wal-
lace, 505; in re Nagle, 135 U. S., 63; U. S. vs. Memphis
Railroad Company, 6 Federal, 237; U. S. vs. Kilpatrick, 16
Federal, 765; U. S. vs. Polite, 35 Federal, 58; in re Nagle, 39
Federal, 833; U. S. vs. Armstrong, 59 Federal, 568. In in
re Brule, 71 Federal, 943, District Judge Hawley held upona
contempt proceeding, that the bribing of a person who is
known to be a material witness in a pending 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 pro-
tection 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 intimidate witnesses before a United States Commis-
sioner is within the statute. Charles vs. U. S., 213 Federal,
717.

§ 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, in-
timidation, 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 examination, or from testify-
ing to any matter pending therein, freely, fully, and truth-
fully, 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, present-
ment or indictment lawfully assented to by him, or on ac-
count of his being or having been such juror, each of such
persons shall be fined not more than five thousand dollars,
or imprisoned nor more than six years, or both.”

The old section contained a minimum punishment of six
months.

The most interesting change in the new section is the ad-
dition of the words, “‘or in any examination before a United
States Commissioner, or officer acting as such commis-
sioner.”” The Supreme Court of the United States, in the
OFFENSES AGAINST PUBLIC JUSTICE 251

case of Todd vs. United States, 158 United States, page 278,
Book 39 Law Ed., 982, held that a preliminary 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 pro-
tect every witness called upon by the laws of the United
States to give testimony in any case and under any circum-
stance, but that the wording of 5406 limited such protec-
tion to those who had dealing with a “court” of the United
States. Under 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 decisions
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 charg-
ing an offense under the new statute, with the possible ex-
ception that the bill could be made stronger, and undoubt-
edly good, if it contained an allegation of knowledge.

§ 114. Attempt to Influence Jury.—New Section 137,
in the following words:

*“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 be-
fore 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 dollars,
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
252 OFFENSES AGAINST PUBLIC JUSTICE

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 official duty.

§ 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 commissioner, and such marshal,
deputy marshal, ministerial officer, or other person volun-
tarily 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 Sheriff,
or Jailer, who has control, under legal authority and pro-
cess, of a Federal prisoner. By Section 139, the above statute
applies not only to domestic prisoners, but any prisoner in
custody, charged with an offense against a foreign govern-
ment with which the United States has a treaty of extradi-
tion, and also to prisoners held in custody for removal to the
Philippine Islands. It is practically 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 allow a prisoner
to escape is reached by the statute. Ex parte Lyman, 202
Federal, 303.

§ 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
OFFENSES AGAINST PUBLIC JUSTICE 253

the provisions of any law of the United States, or shall,
directly or indirectly, aid, abet, or assist any person so ar-
rested to escape from the custody of such officer or other
person, or shall harbor or conceal any person for whose ar-
rest 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 ap-
prehension of such person, shall be fined not more than one
ere 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 indirectly
aiding, abetting, or assisting any person to escape; that of
harboring or concealing any person for whose arrest a war-
rant has been issued. A successful prosecution could not be
had under either of the provisions 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 allegation of knowledge. The latter section of the
statute, which relates to concealing, requires that before one
can 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, 143, 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 person found guilty in any court of the United States of
any capital crime, while going to execution or during execu-
tion, shall be fined not more than twenty-five thousand dol-
lars 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 committed 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 offender, while it is being conveyed
254 OFFENSES AGAINST PUBLIC JUSTICE

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:

“Sec. 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
aa ene dollars, or imprisoned 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 com-
mission 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 disclosed and make known the same to
some one of the judges or other persons in civil or military
authority under the United States, shall be fined not more
than five hundred dollars, or imprisoned not more than three
years, or both.”

This section is a companion to Section 145, above quoted,
and the two together are thought to guarantee publicity 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 misdemeanor as unknown to the
language of the law, but misprision 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.
OFFENSES AGAINST PUBLIC JUSTICE 295

§ 121. Bribery of a Judge or Judicial Officer.—Sec-
tion 131 of the new code amplifies and enlarges old Section
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 dol-
lars, or imprisoned not more than fifteen years, or both;
and shall forever be 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 anything of value, with
the intent to be influenced thereby in any opinion, judg-
ment, or decree, in any suit, controversy, matter, or cause
depending before him, or because of any such opinion, rul-
ing, 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
ve any office of honor, trust, or profit under the United

tates.”

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
256 OFFENSES AGAINST PUBLIC JUSTICE

kind or any promise or agreement therefor, upon any agree-
ment 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,”

creates offenses that were unknown to the old statute.

§ 123a. Indictment—Who is Officer?—An indict-
ment 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, must at the
time of the violation have been an officer as within the statute
provided and described. U. S. vs. Birdsall, 206 Federal,
818.

An “officer” within the meaning of this section where ap-
plicable, and Section 117 of the Code, means one who is
either appointed by the President by and with the advice and
consent of the Senate, or by the President alone, the Courts
of law, or the heads of some executive department, 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.

§ 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 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 under-
standing 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 im-
prisoned not more than two years, or both,”

is likewise an entirely new statute, without any parallel in
the Statutes of 1878.

§ 125. Members of Congress Accepting Bribes, Etc.
—In the next Chapter, under the head of Offenses Relating
to Official Duties, will be found a discussion and citation of
the statutes of the new Code, that inhibit members of Con-
OFFENSES AGAINST PUBLIC JUSTICE 257

gress and other United States officers from accepting bribes,
such statutes and treatment, however, being in a different
Chapter, for the reason that they do not relate directly to
offenses against public justice.

Vv
§ 126.
127.
128.
129.

130.

131.
132.

133.
134.
135.

136.
137.
138.
139.

140.

141.
142.

143.

144,
145.
146.

147.

148.
149.
150.
151.
152.

CHAPTER VII.

OFFENSES RELATING TO OFFICIAL DUTIES.

Extortion, Generally; Definition, Etc.

Extortion as a Federal Offense: 5481—85.

Receipting for Larger Sums Than are Paid: 5483—86.

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.

Disbursing Officers Unlawfully Converting, Etc., Public Money:

New Code, 87.

Failure of Treasurer to Safely Keep Public Funds: New Code, 88.

Custodians of Public Money Failing to Safely Keep: N ew
Code, 89.

Failure of Officer to Render Accounts, Etc.: 90.

Failure to Deposit, as Required: New Code, 91.

Provisions of the Five Preceding Sections, How Applied: New
Code, 92.

Record Evidence of Embezzlement: New Code, 93.

Prima Facie Evidence: New Code, 94.

Evidence of Conversion: New Code, 95.

Banker, Etc., Receiving Deposit From Disbursing Officer: New
Code, 96.

Embezzlement by Internal Revenue Officers, Etc.: New Code,
97.

Officer Contracting Beyond Specific Appropriation: 5503—98.

Officer of United States Court Failing to Deposit Moneys, Etc.:
5504—99.

Receiving Loan or Deposit from Officer of Court: New Code,
100.

Failure to Make Returns or Reports: 1780—101.

Aiding in Trading in Obscene Literature, Etc.: 1785—102.

Collecting and Disbursing Officers Forbidden to Trade in Public
Funds: 1788 and 1789—103.

Judges, Clerks, Deputies, Marshals, and Attorneys, and Their
Deputies Forbidden to Purchase Witness Fees, Etc.: 29 St. L.,
595—104.

Falsely Certifying, Etc., as to Record of Deeds: New Code, 105.

Other False Certificates: New Code, 106.

Inspector of Steamboats Receiving Illegal Fees: 5482—107.

Pension Agent Taking Fee, Etc.: 5487—108.

Officer not to Be Interested in Claims Against United States:
5498—109.

258
OFFENSES RELATING TO OFFICIAL DUTIES 259

§ 153. Member of Congress, Etc., Soliciting or Accepting Bribe: 1781
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, Etc.:
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: 3739—
114.

158. Officer Making Contract with Member of Congress: 3742—115.

159. Contracts to Which the Two Preceding Sections Do Not Ap-
ply: 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 Prohibited;
New Code, 121.

165. Penalty for Violating the Provisions of the Four Preceding Sec~
tions, New Code, 122,

166. All of the Above, Civil Service Act: I 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. Bishop, in
his second volume of Criminal Law, at page 225, says that
those who assume official position place themselves thereby
in circumstances to exert a certain power, which brings with
it corrseponding obligations, cognizable by the Criminal

‘Law, and among wrongful official acts, extortion is partic-
ularly 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 consists in an officer’s unlawfully tak-
ing, 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 be-
fore it is due, obtaining money or other valuable thing by
compulsion or force of motives applied to will.”” Wharton, in
260 OFFENSES RELATING TO OFFICIAL DUTIES

his second volume of Criminal Law, paragraph 1574, de-
fines extortion as any oppression by color of right. Bishop,
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. Tren-
ton, 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 authorities 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 Government were admin-
istering 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 employ-
ment, 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 dollars, or imprisoned not more than one
year, or both.”

The above statute includes not only every officer of the
United States, but every clerk, agent, employee, and every
other person.
OFFENSES RELATING TO OFFICIAL DUTIES 261

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 interest 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 District
Judge, in passing upon a motion to dismiss the prosecution,
held that the word “extortion” implies that the money
paid was extorted. on the part of the one who received it,
and was paid unwillingly by the party paying the same,
and that, therefore, where there was a voluntary payment by
the witness, knowing at the time that it was in excess of the
amount that was required to be paid, and that the same was
willingly paid, and not demanded, would not support a
prosecution, and therefore the motion to dismiss was granted.

Bearing in mind the definitions above quoted, and that
there must be an allegation of corruptness, as above defined,
it is not believed that the Harned case states the rule cor-
rectly. 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 cor-
rupt 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. It is not here argued that an in-
nocent 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 he is entitled to a certain sum, deliberately and cor-
tuptly makes his bill or demand for a larger sum, public
policy would demand that he suffer prosecution under this
statute.

The case of United States vs. Moore, in the 18 Federal,
page 686, is a prosecution under old Section 5485, for de-
manding or receiving a greater sum than ten dollars in a
pension case, and its reasoning may be of interest in study-
ing the instant statute. Under th> Revenue Acts, consid-
ered elsewhere, will be found a statute relating to extortion
by revenue officers or agents. Under the old law, this in-
hibition was contained in Section 3169. The case of United
States vs. Deaver, 14 Federal, 595, in passing upon this
262 OFFENSES RELATING TO OFFICIAL DUTIES

particular statute, defines extortion to be the taking or ob-
taining of anything from another by a public officer,. by
means of illegal compulsion or oppressive 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 re-
quired by law, and the fact that he reported such taxes to
the Collector of the District as received, and the Collector
of the District, in his settlement with the Revenue De-
partment 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, know-
ingly 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 Com-
mon Law that a ministerial officer who had arrested a per-
son, and who takes from such person money, or other re-
ward, under a pretense or promise of getting the offender dis-
charged, is guilty of a criminal offense, and under the Sec-
tion 3169 is extended to officers of the Revenue, and any such
officer who accepts or attempts to collect, directly or in-
directly, as payment or gift or otherwise, 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. 86. Whoever, being an officer, clerk, agent, em-
ployee, or other person charged with the payment of any ap-
propriation made by Congress, shall pay to any clerk or
other employee of the United States a sum less than that pro-
vided 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 amount 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
OFFENSES RELATING TO OFFICIAL DUTIES 263

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 statute, and subject to indict-
ment 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 embezzlements, the
specific elements of which are respectively therein included.
These statutes are practically re-enacted under the follow-
ing 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 man-
ner 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 depository, 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
ue embezzled, or imprisoned not more than ten years,
or both.”

§ 131. Failure of Treasurer to Safely Keep Public
Moneys.—Section 88 of the new Code is in the following
words:

“Sec. 88. Ifthe Treasurer of the United States, or any as-
sistant treasurer, or any public depository, fails safely to
keep all moneys deposited by any disbursing officer or dis-
bursing agent, as well as all moneys deposited by any re-
ceiver, collector, or other person having money of the
United States, he shall be deemed guilty of embezzlement of
264 OFFENSES RELATING TO OFFICIAL DUTIES

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 de-
posit in any bank or exchange for other funds, except as
specially allowed by law, any portion of the public moneys
intrusted to him for safekeeping, shall be guilty of embezzle-
ment 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 ac-
counts for the same as provided by law shall be deemed
guilty of embezzlement, and shall be fined in a sum equal to
the amount of money embezzled and imprisoned 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 possession or under his control, shall fail to deposit it
with the Treasurer, or some assistant treasurer, or some
public depository 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 thereof,
and shall be fined in a sum equal to the amount of money em-
bezzled and imprisoned not more than ten years.”

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, that 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 ‘‘required”
to deposit the same by a specific order directed to him which
he failed to obey, but such requirement may be made by a
OFFENSES RELATING TO OFFICIAL DUTIES 265

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, concern-
ing the deposit of moneys by subordinates in that particular
branch of the Government, would likewise be all that was
necessary to meet the requirement of the 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 persons be indicted as receivers or depositaries
of the same.”

§ 136. Record Evidence of Embezzlement.—New
Section 93 is in the following words:

“Sec. 93. Upon the 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 pro-
ceedings of the Treasury, as required in civil 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 disburse-
ment of the public money to pay any draft, order, or war-
rant 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 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:
266 OFFENSES RELATING TO OFFICIAL DUTIES

“Tf any officer charged with the disbursement of the public
moneys accepts, receives, or transmits to the Treasury De-
partment to be allowed 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 dis-
bursement, 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.”

The above three sections are general statutes that apply
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 Dis-
bursing Officer.—Section 96 of the new Code is in the fol-
lowing 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 payment 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 bank-
ing association who shall violate any provision of this sec-
tion is guilty of embezzlement of the public money so de-
posited, loaned, transferred, used, converted, appropriated,
or applied, and shall be fined not more than the amount em-
bezzled, 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 in-
solvents. See also 15 Opinions of Attorney General, 288.

Under the authority of United States vs. Green et al, 146
Federal, 778, old Section 5497, all the terms of which are in-
cluded in the statute under discussion, extended the crime of
embezzlement of public money to every person who used,
transferred, converted, appropriated, or applied any portion
of the same for any purpose not prescribed by law.

§ 140. Embezzlement by Internal Revenue Officers,
Etc.—Section 97 of the new Code is in the following words:
OFFENSES RELATING TO OFFICIAL DUTIES 267

“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
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 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 prop-
erty of the United States, provided that such money or prop-
erty 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 payment 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.

§ 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 amend-
ment thereto, is in the following words:

“Sec. 98. Whoever, being an officer of the United States,
shall knowingly contract for the erection, repair, or furnish-
ing 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 thusand dol-
lars 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
268 OFFENSES RELATING TO OFFICIAL DUTIES

substantially re-enacts old Section 5504, is in the following
words:

“Sec. 99. Whoever, being a clerk or other officer of a
court of the United States, shall fail forthwith to deposit
any money belonging in the registry of the court of the
court, or hereafter paid into court or received by the officers
thereof, with the Treasurer, assistant treasurer, or a desig-
nated 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 embezzle-
ment, and shall be fined not more than the amount em-
bezzled, or imprisoned not more than ten years, or both;
but nothing herein shall be held to prevent the delivery of
any such money upon security, according 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 otherwise, any money belonging in the registry of
such court, is guilty of embezzlement, and shall be punished
as prescribed in the preceding section.”

§ 144. Failure to Make Returns or Reports.—Sec-
tion 101 of the new Code, which re-enacts old Section 1780,
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 Depart-
ment 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.”

§ 145. Aiding in Trading in Obscene Literature,
Etc.—Old Section 1785, which is to be 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 Code, in the
following words:
OFFENSES RELATING TO OFFICIAL DUTIES 269

“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 importing, advertising, dealing in, exhibit-
ing, or sending or receiving by mail, obscene or indecent
publications or representations, or means for preventing
conception or producing abortion, or other article of in-
decent 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 1789
are re-enacted into new Section 103 in the following words:

“Sec. 103. Whoever, being an officer of the United States
concerned in the collection or the disbursement of the
revenues thereof, 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 thereafter be inca-
pable of holding any office under the United States.”

§ 147. Judges, Clerks, Deputies, Marshals, and At-
torneys, and their Deputies Forbidden to Purchase
Witness 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 there-
of, 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 con-
veyance of real property, or any other instrument which by
law may be recorded, shall knowingly certify falsely that such
270 OFFENSES RELATING TO OFFICIAL DUTIES

conveyance or instrument has or has not been recorded, shall
be fined not more than one thousand 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
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 state-
ment which he knows to be false, in a case where the punish-
ment thereof is not elsewhere expressly provided by law,
shall be fined not more than five hundred dollars, or im-
prisoned 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 al-
lowed 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:

“Every pension agent, or other person employed or ap-
pointed by him, who takes, receives, or demands any fee or
reward from any 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 Leuven, 2 Federal, 62, suc-
cessful prosecutions were laid by the Government against
members of the Board of Examining Surgeons for receiving
and asking outside compensation and gratuity for services
rendered and to be rendered, respecting certain certificates
from the Board of Surgeons. An indictment in the first
case, which charged that the defendant, 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 bad, in that it failed to suffi-
ciently inform the defendant of what he was to meet. These
two decisions held that a member of a Board of Examining
Surgeons, appointed by the Commissioner of Pensions, though
OFFENSES RELATING TO OFFICIAL DUTIES 271

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 dis-
tinguished the case of the United States vs. Germaine, 99
U.S., 508.

§ 152. Officer not to BeInterested 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 fol-
lows:

“Sec. 109. Whoever, being an officer of the United States,
or a person holding any place of trust or profit, or discharg-
ing any official function under, or in connection 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 prose-
cuting any claim against the United States, or in any man-
ner, or by any means, otherwise 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 consid-
eration of having aided or assisted in the prosecution of
such claim, shall be fined not more than five thousand dol-
lars, or imprisoned not more than one year, or both.”

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 conferred 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 Con-
stitutional or other right to require the conditions of the
trusts he accepts to be subsequently altered or removed. In
United States vs. Curtis, 12 Federal, 824, the Court, in ex-
pressing 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 incidents, it is his duty to resign.”

The Curtis case was an indictment, in 1882, against a
Federal employee for soliciting and receiving money from
other Federal employees, to be used by the Republican State
Committee. The indictment was found under Section 6 of
272 OFFENSES RELATING TO OFFICIAL DUTIES

the Act of August 15, 1876, First Supplement, 245, 19 Stat-
ute-at-Large, 169. The defendant was convicted, and there-
after sought, by writ of habeas corpus from the Supreme
Court of the United States, his discharge; but the Supreme
Court, through Chief Justice Waite, in 106 U. S., 371, ex
parte Curtis; Lawyers’ Co-Operative Edition, Book 27,
page 232, refused to discharge the petitioner, and in ef-
fect, 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 Mem-
ber 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,
directly or indirectly, ask, accept, receive, or agree to re-
ceive, any money, property, or other valuable consideration,
or any promise, contract, undertaking, 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, connivance, or concurrence, for his atten-
tion 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 member, dele-

ate, or resident commissioner, shall be fined not more than

hree times the amount asked, accepted, or received, and im-
prisoned 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.”

§ 154. Offering, Etc., Member of Congress Bribe—
New Section 111 contains the meat of old Section 5450, and
is in the following words:

“Sec. 111. 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, undertaking,
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 Con-
gress, or Resident Commissioner, after his election or ap-
pointment, and either before or after he has qualified, and
during his continuance in office, or to any person with his
OFFENSES RELATING TO OFFICIAL DUTIES 273

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 be-
fore him in his official capacity or in his place as such mem-
ber, 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 Mem-
ber Consideration, Etc.—New Section 110, quoted above,
together with new Section 112, which is in the following
words:

“Sec. 112. Whoever, being elected or appointed a Mem-
ber 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 considera-
tion whatever, for procuring or aiding to procure any con-
tract, 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 aid-
ing to procure, any such contract, appointive office, or place,
shall be fined not more than ten thousand dollars and im-
prisoned 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,”

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 Government for cer-
tain automatic cash registers, for a consideration 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,

18
274 OFFENSES RELATING TO OFFICIAL DUTIES

the Court held, of course, that it was necessary to allege in
the indictment the election, qualification, and oath of Die-
trich 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. Im-
mediately 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 ac-
cepted 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 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 offense
for one not to accept an office to which he was elected, but no
such jurisdiction is recognized by the Federal Courts. If
it be true, therefore, that Dietrich agreed to sell the office be-
tween the date of his election, in March, and the date of his
qualification, in December, he committed no offense under
the Statute under discussion. The case of United States vs.
Burton, reported in 131 Federal, 552, grew out of an alleged
practice by Senator Burton before the Post-office Depart-
ment of the United States, with reference to a certain fraud
order that the Postmaster General had issued. The convic-
tion that resulted upon that case was finally reversed, Bur-
ton vs. United States, 196 U. S., 283, but upon a retrial an-
other 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
OFFENSES RELATING TO OFFICIAL DUTIES 275

States, although having no direct money or pecuniary in-
terest in the result, is directly or indirectly interested within
the meaning of Section 1782, making it a misdemeanor for a
United States Senator to receive or agree to receive compen-
sation for services rendered before any Department, in re-
lation to any proceeding in which the United States is so in-
terested.

The Court also in that case said that the agreement to re-
ceive, and the receipt of, the forbidden compensation are
made two separate and distinct offenses under Section 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 con-
spiring 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 sufficiency
in general of a bill alleging the elements of such 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 sub-
versive of our criminal procedure and destructive of the rules
formulated.to promote the due administration of justice, to
establish a practice under which indictments might be
quashed, because of a consideration 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 influence 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 perti-
nent testimony to warrant the returning of the indictment,
and cites cases in support.
276 OFFENSES RELATING TO OFFICIAL DUTIES

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 mean-
ing of the section, in all public lands, and in the right of en-
try or purchase thereof, through proceedings to be had at
any of its land offices. Under the reasoning of this last case,
any compensation 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 elec-
tion and qualification, can never arise under new Sections
112 and 113, for the reason that those sections expressly
provide either before or after qualification.

§ 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 following
words:

Sec. 113. Whoever, being elected or appointed a Senator,
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 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 directly or indirectly interested, before any de-
partment, court-martial, bureau, officer, or any civil, miti-
tary, 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 hold-
ing any office of honor, trust, or profit under the Govern-
ment of the United States.”

§ 157. Member of Congress Not to be Interested in
Contract.—Sections 109, 110, 111, 112, and 113, provide, in
OFFENSES RELATING TO OFFICIAL DUTIES 277

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 following
words:

“Sec. 114. Whoever, being elected or appointed a Mem-
ber 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,
directly or indirectly, himself, or by any other person in
trust for him, or for his use or benefit, 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 behalf, shall be fined not more than three
thousand dollars. All contracts or agreements made in vi-
olation of this section shall be void; and whenever any sum
of money is advanced by the United States, in considera-
tion of any such contract or agreement it shall forthwith be
repaid; and in case of failure or refusal to pay the same
when demanded by the proper officer of the Department un-
der 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 sureties, for
the recovery of the money so advanced.”

The case of the United States vs. Dietrich, 126 Federal,
671, cited supra under 112 and 113, may be read with in-
terest by those seeking light upon the instant statute; 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 qualifi-
cation or after qualification, which meets, as heretofore ob-
served, the objections that were raised by the Court in the
Dietrich case, to a successful prosecution.

§ 158. Officer Making Contract with Member of
Congress.—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 behalf 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 Commissioner, after his election or
appointment as such member, delegate, or resident com-
278 OFFENSES RELATING TO OFFICIAL DUTIES

missioner, 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 qualification 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 preceding
sections—that is, Sections 114 and 115—do not apply to cer-
tain contracts, as is shown by the following words:

“Sec. 116. 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 incor-
porated company, where such contract or agreement is
made for the general benefit of such incorporation or com-
pany; nor to the purchase or sale of bills of exchange or
other property by any Member of or Delegate to Congress,
or Resident Commissioner, where the same are ready for de-
livery, 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 reenacted 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 depart-
ment or office of the Government 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 security for the
payment of money, or for the delivery or conveyance of any-
thing 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 be-
fore 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, ac-
cepted, 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
OFFENSES RELATING TO OFFICIAL DUTIES 279

ee trust, or profit under the Government of the United
ates.

+ The cases of the United States vs. Kissel, 62 Federal, 57,
and United States vs. Van Lauven, 62 Federal, 62, hereto-
fore 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 act-
ing for or on behalf of the United States in any official capac-
ity. :

The case of United States vs. Boyer, 85 Federal, 425, cor-
rectly, 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 func-
tion which under the laws and limitations 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 of-
fer him a gratuity not to perform such duty may think that
he has a right to perform it, yet he would not be guilty un-
der the section, for the reason that he was acting outside of
his authority. In the Boyer case, an Inspector for the Agri-
culture Department of the United States was indicted for
receiving money from the packing house to which he was as-
signed, 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 packing
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 in-
duce 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 discussion,
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 employed 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.
280 OFFENSES RELATING TO OFFICIAL DUTIES

In King vs. United States, 112 Federal, is a state of facts
which showed an offense under Section 5501 of the old Stat-
utes, in the receiving of a large sum of money by a Captian.
in the United States Quartermaster’s Department, for the ac-
ceptance and rejection of material to be used in the con-
struction of a public building, such payment 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 indictment.

An indictment under these sections should charge that the
bribe was given with the intent to influence the official ac-
tion 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 to give a bribe.
It was said, however, in the King case, that after verdict, a
general allegation which seems to show capacity of super-
vision over a particular Governmental function would be
sufficient.

In the case of Sharp against the United States, 138 Fed-
eral, 878, the Circuit Court of Appeals for the Eighth Cir-
cuit, 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 execu-
tion 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 influencing his action on the completion of
such leases, was sufficient 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 subjeot to punish-
ment under the above section.

The case of United States vs. Haas, 163 Federal, 908, was
an indictment under the old Conspiracy Statute, for a viola-
tion of the old bribery section, which was 5451, and is in-
teresting 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
OFFENSES RELATING TO OFFICIAL DUTIES 281

the rules of the Department, acts for the United States in an
official function within the meaning of Revised Statutes No.
5451, making it a criminal offense to bribe any such person,
to induce him to do or to omit to do any act in violation of his
lawful duty.

§ 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
Resident Commissioner to Congress, or Senator, Repre-
sentative, Delegate, or Resident Commissioner-elect, or
officer or employee of either House of Congress, and no execu-
tive, 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 the United States, shall, directly or indirectly, solicit or re-
ceive, or be in any manner concerned in soliciting or receiv-
ing, any assessment, subscription, or contribution for any
political purpose whatever, from any officer, clerk, or em-
ployee of the United States, or any Department, 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 occu-
pied in the discharge of official duties by any officer or em-
ployee of the United States mentioned in the preceding sec-
tion, 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 purpose whatever.”

§ 163. Immunity from Official Proscription, Ete.—
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 dis-
charge, or promote, or degrade, or in any manner change
the official rank or compensation of any other officer or em-

loyee, or promise or threaten so to do, for giving or with-
olding or neglecting to make any contribution of money or
other valuable thing for any political purpose.”
282 OFFENSES RELATING TO OFFICIAL DUTIES

§ 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 serv-
ice 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 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 preceding sections shall be fined not more than five
ae 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, soliciting political contributions
for use by the Republican 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 statute, authorizing
the United States to go direct to the Supreme Court of the
United States under certain conditions, and the Supreme
Court of the United States reversed 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 Build-
ing, 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 oc-
cupied in the discharge of official duties by any officer or em-
OFFENSES RELATING TO OFFICIAL DUTIES 283

ployee 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
whatever.”

In the course of the opinion, the Court says:

“The solicitation was made at sometime, somewhere.
The time determines the place; it was not completed when
the letter was dropped into the post. If the letter had mis-
carried or been burned the defendant would not have ac-
complished the solicitation. The court below was misled
by cases in which, upon an indictment for obtaining money by
false pretenses, the crime was held to have been committed
at the place where drafts were put into the post by a de-
frauding person, but these stand on the analogy of the ac-
ceptance by mail of an offer, 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 depend for their completion
upon events that are not wholly within the offender’s con-
trol, and that may turn out m different ways.” U. S. vs.
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 post-
master, in his office, of a sealed letter containing a request
for a contribution for a political campaign constitutes a
criminal offense under the Act under discussion.

§ 167. Government Officer, Etc., Giving Out Ad-
vance 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 De-
partment or office thereof, and while holding such office, em-
ployment, 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 of the Depart-
284 OFFENSES RELATING TO OFFICIAL DUTIES

ment 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 en-
titled 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 in-
directly 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 al-
leged violation he shall have had actual knowledge thereof.”

§ 168. Government Officer, Etc., Knowingly Com-
piling or Issuing False Statistics Respecting Crops.—
Section 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 information 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 dollars, or im-
prisoned not more than five years, or both.”

§ 169. Counterfeiting Weather Forecasts, Interfer-
ing with Signals, Etc.—In the 33 Statute at Large, page
864, there was annexed to the Agricultural Department Ap-
propriation Act the following statute, with reference to the
protection and reliability of weather reports and forecasts,
including signals issued by and under the control of the
Agricultural Department:

““Any person who shall knowingly issue or publish any
counterfeit weather forecasts or warnings of weather condi-
tions, falsely representing 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 weather 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 a sum not
exceeding five hundred dollars, or imprisoned not to exceed
ninety days, or be both fined and imprisoned, in the dis-
cretion of the Court.” ;
CHAPTER VIII.

OFFENSES AGAINST OPERATIONS OF THE GOVERNMENT.

170.
171.
172.

172a.

173.
174,
175.
176.

176a.

177.
178.
179.
180.
181.

181a.

182.
183.

183a.

184.

184a.

185.

185a.

186.
187.
188.
189.
190.
191.
192.
193.
194.
195.
196.
197.
198.
199.
200.

201.

New Code Generally Under This Head.

Forgery of Letters Patent.

Forging Bond, Bid, Public Record, Etc.

Covers Civil Service Examination, Etc.

Forging Deeds, Powers of Attorney, Etc.

Having Forged Papers in Possession.

False Acknowledgments.

Falsely Pretending to be a United States Officer.

Intent to Defraud, Etc.

False Personation of Holder of Public Stocks.

False Demand or Fraudulent Power of Attorney.

Making or Presenting False Claims.

Embezzling Arms, Stores, Etc.

Conspiracies to Commit Offenses Against the United States;
All Defendants Liable for Acts of One.

Indictment.

Sufficiency of Description.

Venue.

Special Charge on Venue.

Illustrative Cases.

Illustrative Cases Continued.

Bribery of United States Officer.

Officer—Meaning of.

Unlawful Taking or Using Papers Relating to Claims.

Persons Interested not to Act as Agents of the Government.

Enticing Desertions From the Military or Naval Service.

Enticing Away Workmen.

Injuries to Fortification, Harbor Defenses, Etc.

Unlawful Entering Upon Military Reservation, Fort, Etc.

Robbery or Larceny of Persona] Property of the United States.

Embezzling, Stealing, Etc., Public Property.

Receivers, etc., of Stolen Property.

Timber Depredation on Public Lands.

Timber, Etc., Depredation on Indian and Other Reservations.

Boxing, Etc., Timber on Public Lands for Turpentine, Etc.

Setting Fire to Timber on Public Lands.

Failing to Extinguish Fires.

Breaking Fence or Gate Enclosing Reserve Lands, or Driving or
Permitting Live Stock to Enter Upon.

Injuring or Removing Posts or Monuments.

285
286 OFFENSES AGAINST OPERATIONS OF GOVERNMENT

§ 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 ot 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.

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 the 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 gen-
eral head, many of which sections will not be considered
herein, other than to copy them, and refer to the old Sec-
tion of the Revised Statutes of like nature, for the reason that
such offenses are scarcely ever committed.

§ 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 four-
teenth section of the Act of April 30, 1790, which provided
for the death penalty for certain forgeries, is now Section
27 of the new Code, in the following words: ,
OFFENSES AGAINST OPERATIONS OF GOVERNMENT 287

“Whoever shall falsely make, forge, counterfeit, or alter
any letters patent granted or purporting to have been granted
by the President of the United States; or whoever shall pass,
utter, or publish or attempt to pass, utter, or publish as
genuine, any such forged, counterfeited or falsely altered let-
ters patent, knowing the same to be forged, counterfeited, or
falsely altered, shall be fined not more than five thousand
dollars and imprisoned not more than ten years.”

§ 172. Forging Bond, Bid, Public Record, Etc.—
Section 28 of the new Code, which is in the following words:

“Sec. 28. Whoever shall falsely make, alter, forge, or
counterfeit, or cause or procure to be falsely made, altered,
forged, or counterfeited, or willingly aid, or assist, in the
false making, altering, forging, or counterfeiting, any bond,
bid, proposal, contract, guarantee, security, official bond,
public record, affidavit, or other writing for the purpose of
defrauding the United States; or shall utter or publish as
true, or cause to be uttered or published as true, or have in his
possession with intent to utter or publish as true, any such
false, forged, altered, or counterfeited bond, bid, proposal,
contract, guarantee, security, official bond, public record,
affidavit, or other writing, for the purpose of defrauding the
United States, knowing the same to be false, forged, altered,
or counterfeited; or shall transmit to, or present at, or cause
or procure to be transmitted to, or presented at, the office of
any officer of the United States, any such false, forged, al-
tered, or counterfeited bond, bid, proposal, contract, guar-
antee, security, official bond, public record, affidavit, or
other writing, knowing the same to be false, forged, altered,
or counterfeited, for the purpose of defrauding the United
States, shall be fined not more than one thousand dollars,
or imprisoned not more than ten years or both,”

takes the place of Sections 5418 and 5479 of the Revised
Statutes, which largely duplicate each other. Many cases
of interest arose under the two old statutes, and since the
new section comprehends the elements of those two statutes,
the decisions thereunder may be considered authority in
construing and determining the elements of an offense under
the new section.

In United States vs. Hall, 131 U. S., page 50, the Supreme
Court held that a notary public has no general authority to
administer oaths in reference to United States matters, un-
less there be a special statute with reference to such matter.
This decision was approved in United States vs. Reilly,
131 U. S., 59, 33 Law Ed., 75. In United States vs. Manion.
288 OFFENSES AGAINST OPERATIONS OF GOVERNMENT

44 Federal, 800, it is held that no Federal law authorizes
notaries to take affidavits required by Land Department
rules.

In United States vs. Todd, 25 Federal, page 815, it was
determined, as we have already seen with reference to prose-
cutions under the new Code, that a prosecution under Sec-
tions 5418 and 5479 could not be begun by information, since
the punishment was infamous.

The elements necessary to be alleged and proven to make
an offense under the section are plainly set forth in the case
of United States vs. Houghton, 14 Federal, 544. That was a
prosecution against a collector of a port for forging a pay-
roll for transmission to his superior at Washington, as a re-
sult of which he would secure the money. The Court, in
that case, held that the indictment must allege, and the proof
show, that the pay-roll was false, forged, and counterfeited;
that the same was transmitted to the proper officer of the
Government by the defendant; and that the false character
of the writing was known by the defendant at the time of the
sending; and that it was sent with intent to defraud the
United States.

Legal knowledge, as herein understood, and as understood
in all criminal prosecutions, is, that every man is presumed
to know everything that he can learn upon inquiry, when he
has facts in his possession which suggest the inquiry. This
sort of knowledge must be affirmatively shown by the Gov-
ernment, except in the case of confession. It is generally
impossible to make it out by direct evidence, and can only be
inferred from overt acts. Wharton, in discussing the sub-
ject, says that if the knowledge cannot be implied from the
facts and circumstances which, together with it, constitute
the offense, the other acts of the defendant from which it
can be implied to the satisfaction of the jury must be proved
at the trial.

It will be borne in mind that the statute denounces the
offense of forgery, and not the offense of perjury, as was
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 defrauding the
United States, and that the persons so committing the of-
fense had such intent; and if the facts completely show upon
OFFENSES AGAINST OPERATIONS. OF GOVERNMENT 289

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 of-
fense was committed, for the reason that the affidavit could
not be legally used before the Land Office or before the Sec-
retary 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 sup-
port a prosecution hereunder, because the same was in sup-
port of a claim against the Government, which would have
resulted in defrauding the Government.

In United States vs. Bunting, 82 Federal, 883, an applicant
for a Government clerkship filed a sworn application in the
form required for an examination by the Civil Service Com-
mission, and was afterwards notified by postal card to ap-
pear for examination at a time stated. By previous ar-
rangement, another person, impersonating the applicant,
presented himself for examination, and filled out a paper
known as the declaration sheet, which, contained ques-
tions concerning the applicant, and signed the applicant’s
name thereto. The Court held that Section 5418 covered
such a case, and sustained the indictment, and observed
that the acts were an attempt to prejudice the rights of the
United States in the administration of the Civil Service
Statutes, and had the defendant been successful, he would
have obtained a privilege which would have placed him in a
favored class, and have entitled him to an advantage over
others in the appointment to office, which privilege was 3
valuable one, and would have been in prejudice of the Gov-
erment.

In the case of Staton vs. United States, 88 Federal, 253,
the Circuit Court of Appeals for the Eighth Circuit, in pass-
ing upon a case wherein the defendant had been convicted
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

19
290 OFFENSES AGAINST OPERATIONS OF GOVERNMENT

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 defrauded, 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 forgery, 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
necessary ingredient of the offense charged in the indict-
ment, 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 entitle them to remain in the
country, is not within Section 5418, making 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 affi-
davits 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 meridian, where, in
fact, all the townships in the state are numbered from the
same meridian, and the description was, therefore, suffiicent
to identify the lands to the officers acting on the papers, and
such papers were capable 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 ab-
solutely 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
OFFENSES AGAINST OPERATIONS OF GOVERNMENT 291

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 for-
warded to the officers 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 at-
tacked 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
statute 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 Fed-
eral, 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.

§ 173. Forging Deeds, Powers of Attorney, Etc.—
Section 29 of the new Code, in the following words:

“‘Whoever shall falsely make, alter, forge, or counterfeit,
or cause or procure to be falsely made, altered, forged, or
counterfeited, or willingly aid or assist in the false making,
altering, forging, or counterfeiting, any deed, power of at-
torney, order, certificate, receipt, contract, or other writ-
ing, 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 pub-
lish as true, or cause to be uttered or published as true, any
such false, forged, altered, or counterfeited deed, power of at-
torney, order, certificate, receipt, contract, or other writ-
ing, with intent to defraud the United States, knowing the
same to be false, altered, forged, or counterfeited; or who-
ever 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 at-
torney, order, certificate, receipt, contract, or other writ-
ing, 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.”
292 OFFENSES AGAINST OPERATIONS OF GOVERNMENT

takes the place of old Section 5421, and contains all of the
elements of the old Section, and adds thereto the word ‘‘con-
tract,’’ and changes the punishment, fixing a maximum 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 ob-
taining any sum of money from the United States or any of
its officers; second, the uttering of any such forged or counter-
feited 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, there-
fore, 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 in-
cludes in one count allegations that set up acts covering the
entire statute, would be bad for duplicity.

In the case of United States vs. Fout, 123 Federal, 625,
District Judge Adams divided the statute as above indicated.
In the case of United States vs. Swan, 131 Federal, page 140,
the same judge, in passing upon this statute, held that the
forgery of an affidavit by a pensioner, to be used in contest-
ing 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 de-
cision 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, therefore, 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
OFFENSES AGAINST OPERATIONS OF GOVERNMENT 293

they hold that the first and second parts of the old section,
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 dis-
tilled 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 utter-
ing and presenting as true to the Board of Land Commis-
sioners, a false writing purporting to be a grant of certain de-
scribed lands from the Mexican Government, with intent to
defraud the United States, knowing the same to be false, was
subject to demurrer on the ground that the section applied
only to instruments altered or forged for the purpose of ob-
taining 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 al-
leged 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 embrace a
forged endorsement of a genuine instrument, as the forgery
to a bank check drawn by a Pension Agent upon a deposi-
tory of the United States.

In the case of the United States vs. Rohmstormm, 5
Blatchf., 222, it was held that a claim against the Govern-
ment under this section need not be in favor of the party
presenting the false writing or instrument or paper in sup-
port 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 state-
ment in a certificate of something that was not true, if taken
with the intent and knowledge required by the statute,
would authorize prosecution thereunder, and subject the of-
fender to punishment. To the same effect, is the decision in
the case of United States vs. Moore, 60 Federal, 738.
294 OFFENSES AGAINST OPERATIONS OF GOVERNMENT

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 con-
stitute an offense under this section.

It must be remembered, as a general proposition, that the
false statements so made must be material, just as material-
ity 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 indict-
ment 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 punishes 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 indict-
ment 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 attending the fabrica-
tion of the affidavit and jurat, it amounts only to an aver-
ment that the notarial certificate is false. The names signed
to the affidavit and jurat are all geniune. No part of the
affidavit has been altered, forged, or counterfeited. In
short, the certificate contains 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 untruth-
ful statements, is guilty under a forgery statute. The stat-
ute 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 Govern-
OFFENSES AGAINST OPERATIONS OF GOVERNMENT 295

ment 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. Kessel,
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 because it was the en-
dorsement that was forged, and not the draft.

§ 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 de-
fraud the United States, shall have in his possession any
false, altered, forged, or counterfeited deed, power of at-
torney, order, certificate, receipt, contract, or other writ-
ing, 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 ad-
minister oaths or to take and certify acknowledgments, shall
knowingly make any false acknowledgment, certificate, or
statement concerning the appearance before him or the tak-
ing 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 re-
quired 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
296 OFFENSES AGAINST OPERATIONS OF GOVERNMENT

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 speak-
ing of this section, that,

“This section is new. As originally drafted, it was de-
signed to reach officers making false acknowledgments in
contracts, etc., with the Post-office Department, that de-
partment having strongly recommended such a section, in
order to put a stop to abuses which frequently occurred with
respect to mail and other contracts. The Committee on Re-
vision of Laws approved the recommendation, and broadened
the section so as to punish false acknowledgments with
respect to any contract made with or on behalf of the
Government.”

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. FPalsely Pretending to be a United States
Officer.—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 there-
of, 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 thereof, any money, paper, document, or
other valuable thing, shall be fined not more than one thous-

oe dollars, or imprisoned not more than three years, or
ot ry

contains a general statute, which was originally a special
statute against one falsely representing himself to be a Rev-
enue 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 Federal,
757, District Judge Phillips, in passing upon an indictment
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 hold-
OFFENSES AGAINST OPERATIONS OF GOVERNMENT 297

ing 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 pretended char-
acter, did demand and obtain from Julia Eggeling a thing of
value, to wit, lodging of the value of twenty dollars. A sec-
ond count therein pleads the same fact in a different manner.
While the indictment is in general terms, the Court, in pass-
ing thereon, upon objection, held that the offense was statu-
tory, and a bill sufficiently describes the same, which fol-
lows the language of the statute and describes in addition
thereto the act that was done to constitute the offense.
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 wrongfully assert-
ing 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 de-
mand money from another for his private use, with intent to
defraud, and, therefore, an indictment charging that the de-
fendant feloniously, with the intent to defraud H., did falsely
assume and pretend to be an officer acting under the
authority 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 neces-
sary to find that the defendant assumed to be the officer
mentioned in the indictment; that such assumption 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,
298 OFFENSES AGAINST OPERATIONS OF GOVERNMENT

which illegal sale the postmaster admitted; whereupon, the
imposter received one hundred fifty dollars from the post-
master, giving him 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 corner of the
car. He sprang and seized him by the collar. The defend-
ant at once said, ‘“‘I am Bradford, and in the service.”’ The
Postal Clerk denied that he was in the service, and Brad-
ford then said, “I have been discharged, but am trying to
steal a ride to Florence.” The facts not showing that Brad-
ford 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, District
Judge McPherson set aside a conviction, and discharged the
defendant, in a case under this statute, which showed the
following facts: The defendant, while stopping at the prose-
cutor’s hotel as a guest, falsely represented himself to the
prosecutor as a Secret Service operative in the employ of the
Government, and exhibited to the prosecutor a metal badge,
inscribed, ‘‘Secret Service, U. S.”’> Ten months thereafter,
the defendant returned, and represented himself as a travel-
ing salesman, spending several days at the hotel. Prose-
cutor 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 seven-
ty 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 con-
tinued 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 pretending 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
OFFENSES AGAINST OPERATIONS OF GOVERNMENT 299

not be guilty under it who induces another to purchase cer-
tain 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 by representing that the
money therefor goes into U. S. Treasury is not guilty under
this section. U.S. vs. Barnow, 221 Federal, 140.

§ 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 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 re-
ceive the money of such true and lawful holder thereof, or
the money of any person really entitled to receive such an-
nuity, dividend, pension, prize money, wages, or other debt,
shall be fined not more than five thousand dollars, and im-
prisoned not more than ten years.”

§ 178. False Demand or Fraudulent Power of At-
torney.—Old Section 5436 is displaced by the new Code in
Section 34, as follows:

“Sec. 34. Whoever shall knowingly or fraudulently de-
mand or endeavor 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 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 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
300 OFFENSES AGAINST OPERATIONS OF GOVERNMENT

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 obtaining, or aid-
ing 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 Gov-
ernment 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, hav-
ing 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
wilfully to conceal such money or other property, shall de-
liver 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 knowl-
edge 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 re-
ceive 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, am-
munition, 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 offense
under the first portion of the section that there be an aver-
ment that the false claim, etc., was made for the 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
OFFENSES AGAINST OPERATIONS OF GOVERNMENT 301

the claim was presented, if such person be sufficiently desig-
nated 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 indictment. United States vs. Am-
brose, 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 pensioner. In
that case, the defendant, by fraud, secured a pension certi-
ficate from the Government, and thereby had his name en-
tered 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 fraudulent, 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 al-
leged were sufficient to constitute an offense under that sec-
tion.

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 person presenting or aid-
ing in the collection of a false claim, knowing it to be false.
Of course, the allegation of “knowledge” is absolutely neces-
sary, as is also the proof. An indictment under this section
that the defendant ‘“‘presented and caused to be presented,”
is not bad for duplicity, because the statute employs the dis-
junctive “‘or” instead of ‘‘and.’”’ In United States vs. Frank-
lin, 174 Federal, 161, the same question was passed upon,
and the Court held that an indictment was not bad for dupli-
city 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 alleged that the
fraudulent claim was against the War Department of the
United States, and described the officer to whom the claim
was presented as a Brigadier-General in the Army, and Sup-
302 OFFENSES AGAINST OPERATIONS OF GOVERNMENT

erintendent of the Military Academy at West Point, and al-
leged that he was an officer authorized to approve such claim.
Held, that such allegation was sufficient to show authority.
Affirmed by U. S. Supreme 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 Department of the
United States of America, a certain claim against the Gov-
ernment 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 over-
ruled by the trial court, and the same questions were pre-
sented to the Supreme Court in the same case, reported in
155 U. S., page 436; 39 Law Ed., page 213, and the convic-
tion was affirmed, the Court holding that it was not error,
of course, to join distinct offenses 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 certified to by a Justice of the Peace, is ad-
missible in evidence without formal proof that he had been
duly commissioned 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 purporting to
be a Justice of the Peace before whom the affidavit was
sworn to, had not been commissioned as such, and was not
entitled to administer an oath.

Tn 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 solider, of clothing issued to the latter,
during the term of his enlistment, does not constitute a
penal offense within Revised Statutes 5438, providing 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 nothaving the
lawful right to pledge or sell the same, shall be imprisoned,
etc., since the clothing, on being issued to the soldier, be-
comes 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
OFFENSES AGAINST OPERATIONS OF GOVERNMENT 303

Judge Chatfield holds that it is not a defense to a prose-
cution under such statute, 5438, for receiving property in
pledge from a soldier while in the service, that such property
consisted of clothing 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 Chat-
field’s decision. In United States vs. Hart, 146 Federal,
202, a decision 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 soldiers.
The Government determines the character, quality, and
kind of clothing to be issued to the soldiers; and when the
clothing is issued, although it is charged against the soldiers
on their clothing account, they receive but a qualified in-
terest therein.”

The Seventeenth Article of War punishes the soldier by
Court Martial if he loses or spoils his clothing or accoutre-
ments, and Section 3748 authorizes the Government to seize
such property wherever found. This would indicate 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 prop-
erty named, and receiving it from a person in the military
service of the United States. All those things are neces-
sary 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
304 OFFENSES AGAINST OPERATIONS OF GOVERNMENT

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 serv-
ice, 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 Federal, 793;
U. S. vs. Russell, 19 Federal, 591; U. S. vs. Griswold, 24
Federal, 361; U. S. vs. Frisbie, 28 Federal, 808; U. S. vs.
Rhodes, 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. Route, 33 Federal,
246; U. 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; U. 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 inas-
much as the statutory provisions and rules and regulations 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 De-
partment, of a false voucher, etc., was an offense under
5438. This case also authorizes the use of the words ‘“mak-
ing and presenting,” as was considered 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.
OFFENSES AGAINST OPERATIONS OF GOVERNMENT 305

§ 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 fol-
lowing words:

“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, fur-
nished 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 ap-
plicable and pertinent. In that case the indictment was
drawn under Section 5439. It contained two counts, charg-
ing that the defendant had applied to his own use an over-
coat, 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 demurrer to the bill raised
the question whether clothing so issued to inmates of that
institution was within the prohibition 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 having the lawful right to sell the same.
This section (5439), then, prohibits any person from know-
ingly applying to his own use any clothing or other property
of the United States, furnished or to be furnished for the
military service. Under Section 5438, the clothing must be
purchased 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 serv-

20
306 OFFENSES AGAINST OPERATIONS OF GOVERNMENT

ice.’ The indictment, it is true, charges in one count that
the overcoat in question was ‘furnished for the military serv-
ice.’ 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 Government that these military homes are a part of the
military establishment, 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 applies 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.
Congress could probably prohibit the purchase of 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.”

§ 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 com-
mit 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.”

The old and the new sections are practically identical with
the single exception that there is no minimum punishment
under the latter. Indictments under this statute must com-
prehend in allegation, not only whatever averments are neces-
sary under it, but also the necessary allegations and ingredi-
ents 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 understood, is a corrupt agreeing together of
two or more persons to do, by concerted action, something
unlawful, either as a means or an end. The word “cor-
rupt,” as used, means unlawful. The intendment of this
definition is that to conspire to do an unlawful act; or to
conspire to accomplish a result which may in itself be law-
ful, but to do it in an unlawful manner; or an unlawful agree-
ment to accomplish an unlawful result, are conspiracies.
OFFENSES AGAINST OPERATIONS OF GOVERNMENT 307

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 punish-
ment prescribed in this section, and that prescribed in the
statute that the conspiracy was formed to violate, is im-
material. Congress has the power, says the Supreme Court
of the United States, in Clune vs. United States, 159 U. S.,
590, to enact a statute making a conspiracy to do an act
punishable more severely than the doing of the act itself.
The power exists to separate the offenses, and to affix dis-
tinct and independent penalties to each.

As above indicated, there need be no proof of the express
agreement. The full measure of the law is met if the facts
and circumstances indicate with the requisite lawful cer-
tainty the existence of a preconcerted plan. Reilley vs.
United States, 106 Federal, 896; U. S. vs. Cassidy, 67 Fed-
eral, 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.

Text-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 pursuance of
the originally concerted plan, and with reference to the com-
mon object, by any one of the conspirators, are admissible
against all. The rule, however, ceases after the conspiracy,
has been ended; for, upon the completion of the conspiracy,
acts and declarations of co-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
308 OFFENSES AGAINST OPERATIONS OF GOVERNMENT

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 de-
fendants offering to assist in procuring bail, was entirely suffi-
cient to authorize the admission against him of the state-
ments of his co-conspirators. In that case, it was also de-
termined that the order of proof rests in the sound dis-
cretion 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 Kansas, 298.

§ 18la. Indictment.—An indictment under this sec-
tion is not duplicitous 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 conspirator under this act.
U. S. vs. Holte, 236 U. S. 140. An indictment under this
section must charge the act constituting 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 de-
clared to be a crime by some statute of the United States and
it is also charged that one or more of such persons did an act
to carry out the object of such conspiracy. U. S. vs. Wup-
perman et al. 215 Federal, 135.

§ 182. Sufficiency of Description.—In Cling vs.
United States, 118 Federal, 538, the Circuit Court of Ap-
peals 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 Federal, 132.
In United States vs. Stamatopoulos, 164 Federal, 524, Judge
Chatfield, in passing upon a demurrer, said:
OFFENSES AGAINST OPERATIONS OF GOVERNMENT 309

“The indictment sets forth a conspiracy to defraud the
United States, and it is unnecessary to allege either the con-
summation of the fraud, or to include an allegation that the
fraud could have been accomplished unless detected. It is
sufficient to show that the conspiracy 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 consummated in an-
other, the venue may be laid and the trial may be had in
either district.

Sufficient to Warrant Conviction.—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 conspiracy 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 committed in furtherance
of such conspiracy, and that the defendant was one of the
conspirators, a case will have been made out, both by allega-
tion 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 al-
lege its accomplishment, so, also, they have held that a con-
spiracy 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 conspiracy 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 accomplished.
310 OFFENSES AGAINST OPERATIONS OF GOVERNMENT

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 con-
nected 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 bankrupt to com-
mit 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.

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 indicted for con-
spiring to conceal from the Trustee, one of the indicted
parties, assets of the bankrupt. There were convictions.
Upon appeal, the Court held that an indictment 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 aver-
ments of the indictment show that there was in fact no con-
cealment of property from him, and no purpose that there
should be such concealment. 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 con-
spiracy by three persons to commit an offense which only one
of the three could commit. That may not be a defect. The
fatal defect is that it charges Johnson, one of the alleged con-
spirators, with participation in, and knowledge of, a trans-
action which could only be an offense against the law when
it was concealed from him.”
OFFENSES AGAINST OPERATIONS OF GOVERNMENT 311

In United States vs. Melfi, 118 Federal, 899, there was a
prosecution against conspirators to secure, illegally, naturali-
zation papers, but the Court held against the indictment,
not because such a conspiracy would not be unlawful, but be-
cause 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 entitled thereto, under
the provisions of the Hepburn Act, June 29, 1906.

In United States vs. Lonabaugh, 158 Federal, 314, a prose-
cution was sustained upon a conspiracy to induce 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 received 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 priv-
ilege of proper service in the Department of Agriculture, by
corrupting an employee of such department, and inducing
him to secretly furnish advance information of crop condi-
tions, contrary to the rules of the department, and to issue
false reports to the public as to such conditions. The main of-
fense in that case was laid under the bribery statute, 5451,
and the Court held that an Assistant Statistician in the De-
partment of Agriculture, in the performance 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, overruled, 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 expense, it is clear that prac-
tices of this kind would Beprive these reports of most of their
312 OFFENSES AGAINST OPERATIONS OF GOVERNMENT

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 contem-
plate a financial loss, or that one should result. The statute
is broad enough in its tems to include any conspiracy for the
purpose of impairing, obstructing, or defeating the lawful
function of any Department of the Government. Assum-
ing, as we have, for it has not been challenged, that this
statistical side of the Department of Agriculture is the exer-
cise of a function within the purview of the Constitution, it
must follow that any conspiracy which is calculated to ob-
struct 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 depriv-
ing it of its lawful right and duty of promulgating or diffus-
ing information so officially acquired in the way and at the
time required by law or Departmental regulation. That it is
not essential to charge or prove an actual financial or prop-
erty 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; Mc-
Gregor vs. U. S., 134 Fed., 195.”

In 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 ap-
proves 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 con-
spiracy to knowingly and wilfully delay the United States
mail); Wan Din vs. United States, 135 Federal, 704, (The
Court sets out the elements of the conspiracy); United States
vs. Curley, 122 Federal, 738; affirmed in 130 Federal, page 2
(This was a conspiracy to violate the Civil Service Examina-
tion Act); U. S. vs. Richards, 149 Federal, 443. In Craw-
ford vs. U. S., an opinion rendered by the Supreme Court
of the United States, on February 1, 1909; sets forth the ele-
ments of a conspiracy under this section. In in re Miller,
OFFENSES AGAINST OPERATIONS OF GOVERNMENT 313

114 Federal, 963, there was a prosecution for conspiracy to
return one to peonage. See United States vs. Green, 115
Federal, 343, for conspiring to conceal assets in violation of
the Bankrupt Act; United States vs. Goodsay, 164 Federal,
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 conspir-
ing to execute straw bail. In the case of United States vs.
Stevenson, decided by the Supreme Court of the United
States in November, 1909, a conviction for a conspiracy to
violate the Immigration Act was sustained.

In Williamson vs. U. S., 207 U. S., 425, 52 Law Ed., page
207, the Supreme Court reversed and remanded a conviction
of a Congressman for conspiring to suborn perjury, in pro-
ceedings to purchase public land, but held among other
things, that an indictment alleging a conspiracy to suborn
perjury need not, with technical precision, state all the ele-
ments essential to the commission of the crimes of suborna-
tion 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 Federal, 159; Richards vs. U. S., 175 Federal,
911; U. S. vs. Kane, 23 Federal, 748; U. S. vs. Milner, 36
Federal, 890. In United States vs. Keitel, 211 U. S., 370,
the Supreme Court held that a charge of conspiracy to de-
fraud the United States can be predicated on acts made
criminal after 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 sustaining of a demurrer to an indictment brought for a
conspiracy to defraud the United States of public lands, re-
ported in United States vs. Biggs, 157 Federal, 264, the Su-
preme 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;
314 OFFENSES AGAINST OPERATIONS OF GOVERNMENT

Mackin vs. U. S., 117 U. S., 348; U. S. vs. Hess, 124 U. S.,
483; in re Coy, 312 Federal, 794; 127 U. S., 731; U. S. vs.
Perrin, 131 U. S., 55; U. S. vs. Barber, 140 U. S., 177; Petti-
bone vs. U. S., 148 U. S., 197; ex parte Lennon, 150 U. S.,
393; Dill vs. U. S., 152 U. S., 539; Bannon 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 Crawford vs. U. S., 212 U.S.,
page 183, the Supreme Court sustained the sufficiency of the
indictment, but reversed the case on other points. The pro-
secution grew out of a conspiracy between the defendant and
a Government official, by which the Government would be
defrauded by means of a contract betwen the Postal De-
vice and Lock Company, a corporation, and the Post-
office Department of the United States, by which the com-
pany was to furnish certain satchels to the Department for
the use of the letter 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
secure reduced postage rate for newspapers may be subject of
but when it is alleged that the rate sought to be procured is
no less than a regular rate then authorized for second class
matter, no offense is charged. U.S. vs. Atlanta 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 explosives, 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 con-
spiracy to defraud the United States, since as the statute
makes the postmaster’s salary dependent on the gross re-
ceipts, without excluding receipts from such sales, the post-
master was legally entitled to the salary which it was the ob-
ject 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 conspiracy to defraud. U. S. vs.
Foster, 211 Federal, 206.
OFFENSES AGAINST OPERATIONS OF GOVERNMENT 315

. 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,
852. A conspiracy to defraud of customs dues. U. S. vs.
Sherlin, 212 Federal, 343. Conspiracy to liberate prisoner,
ev parte Lyman, 202 Federal, 303. See also U. S. vs. Mun-
day, 186 Federal, 375. Lipman vs. U. S., 219 Federal, 882.
Conspiracy to conceal property from bankruptcy 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 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 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 in-
fluence 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 offered, 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 perfrom his law-
ful duty, before he can be guilty of the crime alleged in the
foregoing section. For instance, in the case of the United
316 OFFENSES AGAINST OPERATIONS OF GOVERNMENT

States vs. Gibson, 47 Federal, 833, the Court quashed an in-
dictment under this section, which set out in substance that
the defendant had offered a bribe to an internal 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 any sense within the official
function of the revenue officer, and, therefore, not an of-
fense under the section. The crime of arson, of course, un-
less 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 determined that an Inspector of the Agri-
culture Department of the United States, charged with the
enforcement of unconstitutional regulations, and offered a
bribe not to perform 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 be-
half of the United States in an official capacity, and, there-
fore, 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 Secret
Service operative employed by the Secretary of the Treas-
ury; 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 neces-
sarily a function belonging to an office held by a person act-
ing on behalf of the United States. It may also be a func-
tion belonging to an office held by his superior which func-
tion has been committed to the subordinate, whether he be
also an officer or a mere employee for the purpose of execut-
ing the function.
OFFENSES AGAINST OPERATIONS OF GOVERNMENT 317

In the case of United States vs. Green, 136 Federal, 618,
the doctrine was announced that the giving of a 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 allegations to show that as a matter
of fact the check was valuable. A bank check not thus de-
fined in the bill of indictment is not an obligation for the pay-
ment 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
purpose 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 alleged attempt to
bribe an agent of the Treasury Department, charged with
the location of public buildings. The evidence, however,
was held to be insufficient by the Court of Appeals.

The Supreme Court, in the case of Palliser vs. United
States I36 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 writer 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 credit in violation 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.

§ 186. Unlawfully Taking or Using Papers Relating
to Claims.—Section 40 reads as follows:
318 OFFENSES AGAINST OPERATIONS OF GOVERNMENT

“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 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 in-
tended to be used or presented in order to procure the pay-
ment 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 al-
lowed 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.”

§ 187. Persons Interested Not to Act as Agents of
the Government.—Section 1783 of the old statutes be-
comes Section 41 of the new Code in the following words:

“Sec. 41. 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 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 corporation. It has like-
wise been made more comprehensive, in that it now covers
officers and agents of any “‘joint stock company or associa-
tion.”

§ 188. Enticing Desertions from the Military or
Naval Service.—Section 42 of the new Code re-enacts the
OFFENSES AGAINST OPERATIONS OF GOVERNMENT 319

substantial 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 seaman or other person in the naval service
of the United States, or who has been recruited for such serv-
ice, to desert therefrom, or shall aid any such soldier, sea-
man, or other person in deserting or in attempting to de-
sert from such service; or whoever shall harbor, conceal, pro-
tect, 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
soldier, seaman, or other person on the demand of any officer
authorized to receive him, shall be imprisoned not more than
three 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 warrant or
authority from the United States.

§ 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
workman retained or employed in any arsenal or armory,
to depart from the same during the continuance of his en-
gagement, 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 be fined not more
a fifty dollars, or imprisoned not more than three months,
or both.”

§ 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:
320 OFFENSES AGAINST OPERATIONS OF GOVERNMENT

“Sec. 44. Whoever shall willfully trespass upon, injure, or
destroy any of the works or property or material of any sub-
marine mine or torpedo, or fortification or harbor-defense
system owned or constructed or in process of construction by
the United States, or shall willfully interfere with the opera-
tion or use of any such submarine mine, torpedo, fortifica-
tion, or harbor-defense system, shall be fined not more than
five thousand dollars, or imprisoned not more than five
years, or both.”

§ 191. Unlawfully Entering Upon Military Re-
servation, 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 reserva-
tion, 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 reserva-
tion, post, fort, or arsenal, after having been removed there-
from 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:

“Sec. 46.. Whoever shall rob another of any kind or de-
scription 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 dollars, or im-
prisoned 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 description of personal prop-
erty belonging to the United States. This is a distinct and
separate offense from that of robbery. “If the statute re-
quired the taking to be forcible in all cases, the language pro-
viding against the felonious taking and carrying away of the
personal property of the United States would be surplusage,
the forcible taking being already implied and included in
the use of the word ‘rob’; but in addition to robbery, the of-
fense of feloniously (not forcibly) taking the personal prop-
erty of the United States, is created.”
OFFENSES AGAINST OPERATIONS OF GOVERNMENT 321

Postage stamps which have not been issued or sold, and
are in the possession of the Government, are personal prop-
erty 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 of-
fense 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 punish-
ment was different. That case also gives a form of indict-
ment.

§ 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 what-
ever, of the moneys, goods, chattels, records, or property of
the United States, shall be fined not more than five thous-
and dollars, or imprisoned not more than five years, or both.”

In drafting indictments for the various offenses created 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 offenses 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 embezzle-
ment, of course, the indictment must allege that the sum al-
leged 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 employee in
whatever department of the Government he served. Want
of consent of the postmaster to embezzlement of money-
order funds by his assistant is not neccessary to make the lat-
ter liable for the crime, under the authority of Faust vs.
United States, cited supra.

21
322 OFFENSES AGAINST OPERATIONS OF GOVERNMENT

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 Federal, 764, the
Federal Criminal Jurisprudence is entirely destitute of any
substratum of a Common Law of crimes and misdemeanors
upon which to draw for supplying 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 ingredient 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 they were public records, and the Court ordered a
verdict of not guilty.

§ 194. Receivers, Etc., of Stolen Public Property.—
Section 48 of the new Code enacts the substantial features 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 con-
cealing 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 thousand
dollars, or imprisoned not more than five years, or both;
and such person may be tried either before or after the con-
viction of the principal offender.”

This statute leaves out that provision of the old statute
which made the judgment of conviction of the principal con-
clusive evidence in the prosecution against such receiver.
That provision was declared to be unconstitutional 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 Su-
preme Court held that the provision that the judgment of
conviction against the principal felons shall be evidence in
OFFENSES AGAINST OPERATIONS OF GOVERNMENT 323

the prosecution against the receiver of the property of the
United States alleged to 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 ac-
cused received it or need not state that the name of such per-
son 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 re-
ceiver, and the words “‘unlawfully, knowingly, and wilfully”
should be used.

§ 195. Timber Depredations on Public Lands.—
The Act of August 4, 1892, 27 Statute at Large, 348, Second
Supplement, 65, extended the Act of June 3, 1878, 20 Stat-
ute at Large, 90, First Supplement, 168, to include all the
public land States, and these Acts are substantially re-en-
acted 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 de-
stroyed, 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 _ there-
from, 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 improvements, or the tak-
ing of timber for the use of the United States. And nothing
in this section shall interfere with or take away any right or
324 OFFENSES AGAINST OPERATIONS OF GOVERNMENT

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 deter-
mining some of the elements of this new section. For in-
stance, in United States vs. Stores, 14 Federal, 824, it was
determined that the term “‘timber,’’ as used in Section 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 manufac-
ture, 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 do-
main 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 appropriated for Gov-
ernment 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 Reservation by another person with-
out his aid or encouragement. Of course, the present sec-
tion not only covers the cutting and causing or procuring to
be cut, or wanton destruction, but also removal of any tim-
ber from such public lands.

Intent.—Prosecutions under this section should include
the allegation of knowledge and wilfulness, and a depreda-
tion 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 knowl-
edge that it is Government lands, on the authority of Taylor
vs. United States, 113 Federal, which was an opinion by the
Circuit Court of Appeals for the 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
OFFENSES AGAINST OPERATIONS OF GOVERNMENT 325

obtained; nor would the defendant be protected for unlaw-
fully cutting timber on public land by the fact that he acted
in accordance 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 surveyed, and had also noti-
fied 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 timber with in-
tent 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 provided that no
indictment shall be deemed insufficient or the proceedings
under it affected, by any defect in matter of form, which
does not tend to prejudice the defendant.

§ 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 the
Fourth of June, 1888, 4 Supplement, 588, are included in sub-
stance in new Section 50, which reads as follows:

“Sec. 50. Whoever shall unlawfully cut, or aid in unlaw-
fully 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 Reserva-
tion, or lands belonging to or occupied by any tribe of In-
dians under the authority of the United States, shall be
fined not more than five hundred dollars, or imprisoned not
more than one year, or both.”
326 OFFENSES AGAINST OPERATIONS OF GOVERNMENT

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 stading on Indian
Reservations is in the United States, and in the absence of
legislative authority, Indians have no right to cut or dis-
pose of it; and where an Indian made a contract with a pur-
chaser to cut and deliver to such purchaser a certain quant-
ity of timber, “‘more or less, or about,”’ to be taken from the
dead timber on a reservation, which contract to sell was per-
mitted 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 pur-
chaser had paid for a large quantity, delivered and received,
in excess of that stated in the contract, did not give him title
thereto, 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 timber,
that they might pass under a contract, and such an agree-
ment would not estop the Government from recovering the
value of such trees.

§ 197. Boxing, Etc., Timber on Public Lands for
Turpentine, Etc.—The Act of June 4, 1906, 34 Statute at
Large, 208, is practically re-enacted into new Section 51:

“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 settle-
ment, application, filing, entry, selection, or location, made
under any law of the United States, for the purpose of ob-
taining from such tree any pitch, turpentine, or other sub-
stance, 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 com-
modity made from any such pitch, turpentine, or other sub-
stance, when he has knowledge that the same has been so un-
lawfully obtained from such trees, shall be fined not more
than five hundred dollars, or imprisoned not more than one
year, or both.”
OFFENSES AGAINST OPERATIONS OF GOVERNMENT 327

This statute became necessary by reason of the depreda-
tions which the Courts held were not violations of any exist-
ing statutes. In United States vs. Garretson, 42 Federal, 22,
the Court held that Section 5388 of the old Statutes, making
the wanton destruction of timber on lands reserved for public
uses a crime, did not cover turpentine boxing or wanton de-
struction of timber on lands open for pre-emption, home-
stead, 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.”

§ 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: :

“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 dollars, 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 con-
structed, 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 inflammable material, shall be fined not
more than five thousand dollars, or imprisoned not more than
two years, or both.”
328 OFFENSES AGAINST OPERATIONS OF GOVERNMENT

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 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 knowing-
ly 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 remove to another place any section corner, quarter-sec-
tion corner, or meander post, on any Government line of
survey, or shall wilfully 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 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
OFFENSES AGAINST OPERATIONS OF GOVERNMENT 329

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 attempt to
hinder or prevent, any person from bidding upon or purchas-
ing 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 include
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 tele-
graph, telephone, or cable line, or system, operated or con-
trolled by the United States, whether constructed, or in pro-
cess of construction, or shall wilfully or maliciously interfere
in any way with the working or use of any such line, or sys-
tem, 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.”

§ 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
counterfeit weather forecast or warning of weather condi-
tions falsely representing such forecast or warning to have
been issued or published by the Weather Bureau, United
States Signal Service, or other branch of the Government
330 OFFENSES AGAINST OPERATIONS OF 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
Animal 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 Agri-
culture 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 dangerous 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 pursu-
ance of law by any 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 imprisoned not more than three years.”

§ 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 inspec-
tion thereof has been demanded by the collector of any col-
lection district, or shall at any time conceal or destroy 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 imprisoned not more
than two years, or both.”
OFFENSES AGAINST OPERATIONS OF GOVERNMENT 331

§ 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 as-
sisting 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 thousand dollars, or imprisoned
not more than one year, or both; and whoever shall use any
deadly or dangerous weapon in resisting any person author-
ized 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 dicharging his duty, shall be im-
prisoned not more than ten years.”

§ 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 money or other article of value from any person
for any duty or tax due to the United States, or for any viola-
tion 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 pre-
tend 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 received from any person for any
duty or tax due the United 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 demand-
ing or receiving any money or article of value, as set out in
332 OFFENSES AGAINST OPERATIONS OF GOVERNMENT

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 un-
lawful, 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 certain money
or valuable thing, as the case may be, as a duty or tax, or in
settlement of some violation or pretended 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 répresented 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 concern-
ing 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 charged that the defendants had in pos-
session washed and restored revenue stamps, knowingly,
and without lawful excuse. The third count charged that
the defendants, with intent to defraud one Isaacs, unlaw-
fully 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 defendants’
counsel contended that the averments of the indictment
were not sufficiently defined, particularly as to the designa-
tion of the sort of revenue officer meant. The Court held
that the words of the indictment were technically sufficient
to charge an offense under the statute.

The case of the United States vs. Farnham, 127 Federal,
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
OFFENSES AGAINST OPERATIONS OF GOVERNMENT 333

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 returned to the same hotel, represent-
ing himself to be a traveling salesman, and secured the cash-
ing of a worthless 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 pretending
to be an employee of the United States, and as such know-
ingly and feloniously obtaining from another a sum of
money, etc.

§ 211. Offering Presents to Revenue Officers.—
Section 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 of the revenue, any gratuity 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.”

The offense herein denounced is a species of bribery, and
without 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 though such official
would not think of accepting a bribe. The statute is limited
in that it only applies to such gratuities or presents as are
made by importers to any officer in the Federal revenue serv-
ice. Smuggling of merchandise 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 impor-
tations 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:
334 OFFENSES AGAINST OPERATIONS OF GOVERNMENT

“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 transaction 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 admission of imports,”’ includes aid given
both before and after the fact, and where a custom officer
aids one who has made wrongful entry, by concealing the
falsity of the entry, or by supporting it by false official re-
turns, he is within the prohibition of the section.

Indictment.—In the above case, the Court held that an
indictment which charged that certain goods had been im-
ported into the United States, and entered by the importer
with the collector of the port under an entry number, that
such goods were subject to a specific duty, and that the de-
fendant, 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 state-
ment 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, unlaw-
fully admitted, or aided in admitting, to entry, goods speci-
fied upon payment of less than the amount of duty legally
due thereon, was not subject to demurrer for failing to de-
scribe 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.
OFFENSES AGAINST OPERATIONS OF GOVERNMENT 335

§ 213. Securing Entry of Merchandise by False
Samples, 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 know-
ingly 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 improper
weight or measure or classification of the goods or articles
imported; and while in United States vs. Rosenthal, 126
Federal, 766, District Judge Thomas held that an indictment
under 5445 which charged that the defendant, 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 constituent of the offense.

With the above qualification, the indictment as epitomized
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 specifically dutiable ac-
cording to weight, effected an entry thereof, which was an
entry for warehousing the goods, and by payment of less
than the legal duty. They effected said entry, (1) by mak-
ing 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 col-
lector. 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 classifica-
tion; or (c) by payment of less than legal duty
336 OFFENSES AGAINST OPERATIONS OF GOVERNMENT

§ 214. False Certification by Consular Officers.—
Old Statute 5442 has been changed by the omission of the
words “commercial agent or vice-commercial agent,” sub-
stituting 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 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 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 denounced by
the statute while he was in some foreign country would be
beyond the jurisdiction of the Federal Government, be-
cause 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
Revenue Officer.—There is practically no difference be-
tween the wording of old Section 5446 and new Section 71,
which reads as follows:

“Sec. 71. 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 dollars and imprisoned
not more than one year.”

While this statute does not contain the word “‘knowingly,”
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 offi-
cer as a revenue Officer of the United 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 provision
for the prosecution of falsely making, forging, etc., certifi-
cates, when such certificate was for the use of the person so
OFFENSES AGAINST OPERATIONS OF GOVERNMENT 337

falsely making or for the use of someone else. In other
words, to constitute an offense under the statute, the certifi-
cate 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, be-
comes Section 74, which reads as follows:

“Sec. 74. Whoever shall falsely make, forge, or counter-
feit, 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 citizen-
ship, 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.”

§ 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
engraved, or assist in engraving, any plate in the likeness of
any plate designed for the printing of a certificate of citizen-
ship; 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 certi-
ficate or any part thereof; or whoever shall print, photograph,
or in any manner cause to be printed, photographed, 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 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

22
338 OFFENSES AGAINST OPERATIONS OF GOVERNMENT

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:

“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 wherever 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 appear-
ing 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 appearing
as a witness for any such person. To meet such construc-
tion, and to remedy what was evidently a mistake, we have
Section 76 of the new Code, in the following 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, dis-
pose 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 whoever shall sell
or dispose of to any person other than the person for whom
it was originally issued any certificate of citizenship, or certi-
ficate 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 person. The use of
the word “‘whoever’’ before each of the clauses in the sec-
tion which denounce various phases of the offense, meet
OFFENSES AGAINST OPERATIONS OF GOVERNMENT 339

clearly the limitations found in the old statute, and render
the new section general in its application.

§ 219. Using False Certificate of Citizenship, or
Denying 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 Section
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 purport-
ing 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, 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 certi-
ficate, or knowing the same to have 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 unlawfully to use the same; or whoever, after hav-
ing been admitted to be a citizen, shall, on oath or by affi-
davit, 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, therefore, be observed that
one of the essential ingredients of the offense is that the per-
son who should obtain, accept, 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 procure or aid in procuring the issue of such certi-
ficate.

Running throughout these naturalization laws, is the use
of the word “‘knowingly,” and the pleader must not assume
340 OFFENSES AGAINST OPERATIONS OF GOVERNMENT

that such word was used by Congress unintentionally. It
is absolutely necessary to show knowledge, both in allegation
and in proof.

§ 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. 78. Whoever shall in any manner use, for the pur-
pose of registering as a voter, or as evidence of a right to
vote, or otherwise unlawfully, any order, certificate of citizen-
ship, or certificate, judgment, or exemplification, showing any
person to be admitted to be a citizen, whether heretofore or
hereafter issued or made, knowing that such order, certifi-
cate, judgment, or exemplification has been unlawfully is-
sued 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 thousand
dollars, or imprisoned not more than five years, or both.”

Bearing in mind the observation that has been so often re-
peated 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 indictment 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 knowl-
edge that the certificate 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 com-
plied fully with all the conditions imposed on him as prere-
quisite 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 certificate had been
issued when the applicant was not in Court, and without any
oath taken by him, the certificate being regular upon its
face, the mere fact that the defendant knew that the cer-
tificate had been issued without his presence in Court, and
without any oath being taken by him, was not sufficient
to warrant a conviction.
OFFENSES AGAINST OPERATIONS OF GOVERNMENT 341-

§ 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
naturalization heretofore or which hereafter may be granted
by any court, which has been or may be procured through
fraud or by false evidence, or which has been or may here-
after 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 him-
self 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 Federal, 569,
applies to a regular compliance with requirements, rather
than to the truth of the facts involved in the admission, and
where the person charged was granted a certificate of citizen-
ship by an order of Court, both of which are regular-in form,
and have not been vacated, it is impossible to charge un-
lawful use, based solely upon a further allegation of knowl- _
edge that the certificate had not been duly made.

In Green vs. United States, 150 Federal, 560, the Circuit
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 Regis-
tration Officer for the purpose of procuring himself to be reg-
istered as a voter at an approaching election in a State, com-
mits 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.

§ 222. Taking False Oath in Naturalization.—Sec-
tion 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.’
-342 OFFENSES AGAINST OPERATIONS OF GOVERNMENT

In United States vs. Moore, 144 Federal, 962, the Circuit
Court of Appeals passes upon a form of an indictment under
this section, and says that in prosecutions for perjury and in
prosecutions akin thereto, it is a fundamental rule that an
indictment must show that the tribunal before which the of-
fense is alleged to have occurred had jurisdiction over the is-
sue 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 juris-
diction 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 committed
in a naturalization though such affidavits, when signed, were
in blank. So, too, in that case the Court held that a de-
‘fective final order was admissible as evidence of the facts
‘therein stated. The Supreme Court, in Holgren vs. United
States, October Term, 1909, affirms same case, 156 Fed-
eral, 439, the principal question being whether, 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-

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-enacted
into Section 81 of the new Code, and some new words are
added for the purpose of showing that the penal 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 preced-

ing shall apply to all proceedings had or taken, or attempted
to be had or taken, before any court in which any proceed-
OFFENSES AGAINST OPERATIONS OF GOVERNMENT 343

ings 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, affirmed
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 certificate was
insufficient to warrant the finding of residence. U. S. vs.
Roekteschell, 208 Federal, 530. The word ‘“‘reside’’ as used
in the naturalization suit is capable of different meanings.
Generally however, it signifies nothing more nor less than
domicile. U.S. vs. Roekteschell, 208 Federal, 530.

§ 224. Corporations, Etc., Not to Contribute 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 corporation organized by authority of any law of Con-
gress, 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 Presidential and Vice-
Presidential electors ora 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 con-
tribution by the corporation in violation of the foregoing
provisions shall be fined not more than one thousand dol-
lars, 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 obedi-
ence. All these petit treasons 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 Com-
mon Law crimes, and treason, as defined in the Constitu-
tion 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 an 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 overthrow the
Government against which it is levied. Ordinarily, where the
overthrow is not contemplated, a treaty acknowledging
rights previously denied is expected. If a body of men, mis-

344
OFFENSES AGAINST THE EXISTENCE OF GOVERNMENT 345

takenly deeming a particular statute to violate fundamental
or constitutional right, combine to oppose by force its execu-
tion, and commit therein an overt act, they are undoubt-
edly guilty of treason, provided, 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 com-
pelled to yield to them. Bishop’s New Criminal Law, Sec-
ond 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 dispensed with: the one is the intent existing as of fact in
the mind of the accused person, either to overthrow the Gov-
ernment, or to compel it, through fear, to yield something to
which it would not voluntarily assent; the other is some overt
act in the nature of war or preparation therefor, or threat-
ening it, as an array of persons assembled 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 Government, 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 comfort within the United States or else-
where, is guilty of treason.”

In 1 Story, U. S., 614, 30 Federal Case, 18275, the follow-
ing charge was given to a grand jury:

“Tt 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 object of an assembly of
persons met with force is to overthrow the Government or
Constitution of a State, or to prevent the due exercise of its
sovereign powers, or to resist the exercises of any one or
more of its general laws, but without any intention whatso-
ever to intermeddle with the relations of that State with the
national Government, or to displace the national laws or
sovereignty therein:—every overt act done with force to-
ward the execution of such a treasonable 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 merged
346 OFFENSES AGAINST THE EXISTENCE OF GOVERNMENT

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

ae ag the exercise of the national sovereignty within the

gas of the State, that would be treason against the United
ates.”

In United States vs. Wiltberger, 5 Wheat., U. S., 76,
treason was defined as a braech 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 marching 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; er 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. Pryor, 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 Fed-
eral 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.

§ 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:

“Sec. 2. 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 committing such treason, any sale or conveyance to
OFFENSES AGAINST THE EXISTENCE OF GOVERNMENT 347

the contrary notwithstanding; and every person so con-
victed 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 there-
with, that there was not left in him any interest 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 acquired
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 notification of the proceed-
ings, 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 he, dis-
close 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 mis-
prision. of treason and shall be imprisoned not more than
en years and fined not more than One thousand dol-
ars.”

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.

Misprision, whether of felony or of treason, is defined by
the text-book writers as criminal negligence either to pre-
vent it from being committed, or to bring to justice the of-
fender after its commission. The statute under considera-
348 OFFENSES AGAINST THE EXISTENCE OF GOVERNMENT

tion seems to be limited by its terms, not to a prevention
of the offense of treason, but to the disclosure of the knowl-
edge of the commission as soon as may be.

§ 229. Inciting or Engaging in Rebellion or Insur-
rection.—Section 5334 of the old Statutes becomes Sec-
tion 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 imprisoned not more than ten years, or fined
not more than ten thousand dollars, or both; and shall,
mraneayers be incapable of holding any office under the United

tates.”

§ 230. Criminal Correspondence with Foreign Gov-
ernments.—Section 5335 of the old statutes becomes Sec-
tion 5 of the new Code, which reads as follows:

“Sec. 5. 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 Government,
directly or indirectly, commences or carries on any verbal or
written correspondence or intercourse with any foreign gov-
ernment or any officer or agent thereof, with an intent to
influence the measures or conduct of any foreign govern-
ment or of any officer or agent thereof, in relation to any dis-
putes 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 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.”

§ 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
OFFENSES AGAINST THE EXISTENCE OF GOVERNMENT 349

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 thous-
and dollars, or imprisoned not more than six years, or both.”

§ 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 enlist-
ment 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 there-
of, with intent to serve in armed hostility against the United
States, shall be fined one hundred dollars and imprisoned
not more than three years.”

§ 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 accouterments, and the
Government, in supplying the soldier or recruit with equip-

ments 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 pos-
session 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 solider or sailor any arms, equipment, am-
munition, 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
350 OFFENSES AGAINST THE EXISTENCE OF GOVERNMENT

vs. U. S., 183 Federal, 742. Since the Government is e-
quired to prove guilty knowledge under this section, evi-
dence of the commission of other similar offenses by accused
than those charged in the indictment is admissible. Lob-
osco vs. U. S., 183 Federal, 742. See also Carter vs. Mc-
Claughry, 183 U. S., 365. It is not essential that the voucher
or other thing should in itself contain false matter, but wheth-
er the claim is honest or fraudulent is to be determined from
all the facts. Dimmick vs. U. S., 116 Federal, 825.
CHAPTER X.

OFFENSES AGAINST NEUTRALITY.

§ 234. Neutrality Generally.
234a. President’s Power to Enforce Neutrality.
235. Accepting Foreign Commission.
236. Enlisting in Foregin 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 mean-
ing 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 be-
tween others; the taking of no part on either side; in inter-
national law, the attitude and condition of a nation or state,
which does not take part, directly or indirectly, in a war be-
tween other states, but maintains relations 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 speak-
ing, consists in abstinence from any participation in a pub-
lic, private, or civil war, and impartiality of conduct to-
ward 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 beligerent
nations the friendly relations of commerce, or only of social-
ity, or of humanity, existing before the out-break of hositili-
ties, may call itself neutral. This quality imposes upon it

351
352 OFFENSES AGAINST NEUTRALITY

the obligations which may be summed up in two principles,
and which embrace 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 observe 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 construing 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 er parte Orozco, 201 Federal, 106,
questioned the power of the President to use the military
power of the United States to arrest and imprison for neu-
trality violations and held that the fifth amendment to the
Federal constitution guaranteeing immunity against being
deprived of liberty without due process of law, and the fourth
amendment declaring that warrants shall not be issued ex-
cept on probable cause supported 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 condi-
tions, was limited to a transportation of arms or munitions
OFFENSES AGAINST NEUTRALITY 353

of war from any place in the United States to “such coun-
try,”’ 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 violation of the
Presidential proclamation, did make a shipment of cart-
ridges, etc., by transporting them on his person 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.

§ 235. Accepting Foreign Commission.—Section 9 of
the new Code re-enacts old Section 5281, and is in the fol-
lowing language:

“Sec. 9. Every citizen of the United States who, within
the territory 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 de-
scribed 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 provisions, muni-
tions of war, or any other act which shows an exercise of the
authority which the commission is supposed: 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 enlist or enter himself, or to go beyond the
limits or jurisdiction 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 sea-
man, 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, United
States vs. Obrien et al, 75 Federal, 900, that persons are not

23
354 OFFENSES AGAINST NEUTRALITY

only prohibited from enlisting in this country as a solider of
any foreign power, but they are also prohibited from hiring
or retaining any other person to enlist 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 enlist-
ing 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 enter-
prise, 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 transportation of it, are
guilty under the statute. U.S. vs. Obrien, 75 Federal, page
900.

§ 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 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, dis-
trict, 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 commis-
sion 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 im-
prisoned not more than three years. And every such ves-
sel, her tackle, apparel, and furniture, together with all ma-
terials, 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 informer and the other
half to the use of the United States.”
OFFENSES AGAINST NEUTRALITY 355

The statute contains two methods of punishment, it will
be noticed: one against the person, and one against the prop-
erty; that is, the imprisonment of the offender and the for-
feiture 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
Denish 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, ma-
chettes, cartridges, and other munitions of war, which cargo
was subsequently delivered to Cuba, where there was an in-
surrection of the Cubans against the Spaniards, said in sub-
stance, 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 am-
munition 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 disem-
bark 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, ex-
planatory of acts done in furtherance of its object, are com-
petent evidence after the combination 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 in-
terfere with the commercial activity of citizens of the United
States, or of others residing therein, and interested in com-
mercial transactions, nor to render unlawful mere commercial
ventures in contraband of war, they were designed to pro-
hibit 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
356 OFFENSES AGAINST NEUTRALITY

to a friendly power engaged in hostilities, and calculated or
tending to involve this country in war, whether an inci-
dental 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 determined 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 com-
pleted 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 property 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,
which then, for the first time, is intended to commit such
hostilities, no forfeiture accrues under the section.

§ 238. Forfeiture Without Conviction.—On the
authority 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 con-
demnation 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 denounced in the
statute. The two proceedings are wholly independent, and
pursued in different courts. Indeed, forfeiture might be
decreed, if the proof showed the prohibited acts were com-
mitted, 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 forfeiture under this section, before answer or
OFFENSES AGAINST NEUTRALITY 357

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 re-
called.

§ 239. Augmenting 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 in-
creasing or augmenting, the force of any ship of war, cruiser,
or other armed vessel which, at the time of her arrival with-
in the United States, was a ship of war, or cruiser, or armed
vessel, in the service of any foreign 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 peo-
ple, 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 for any per-
son to increase or augment, within the territory of the United
States, any war vessel belonging to a foreign power. Such
equipment, within the meaning of the statute, must be in-
tended solely for the purpose of war. See Alerta vs. Moran,
9 Cranch, 359; U. S. vs. Grassin, 3 Washington, 65; 26 Fed-
eral 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 pre-
pares 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.”
358 OFFENSES AGAINST NEUTRALITY

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 pre-
vent complications between this Government and foreign
powers. It is not the intent of that section in any manner to
check or interfere with the commercial activities of citizens of
the United States, or of others residing within the United
States and interested in commercial transactions; but to pre-
vent the use of the soil or waters of the United States as a
base from which military expeditions or military enter-
prises 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 rule in Cuba, was, within the meaning
of that section, a preparing of the means for such military
enterprise, to be so carried on; and if done with knowledge
on the part of the person so providing the means of trans-
portation, of the character and purpose of such enterprise,
the same is denounced by the statute.

In Wibord vs. United States, 163 U. S., 632, the Supreme
Court held that a hostile expedition dispatched from the
ports of the United States, is within the words “carried on
from thence.”

Under the authority of Hart vs. United States, 84 Federal,
799, the question as to whether the men and munitions of
war, for which the accused furnished transportation, con-
stituted a “‘military expedition” in the meaning of the stat-
ute, or the men were traveling as individuals, without
organization or concert of action, and the arms and muni-
tions were carried as articles of legitimate commerce, and
whether the accused had guilty knowledge of the facts con-
stituting the military expedition (if it were such), are all
questions for the jury, under proper instructions.

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 contribu-
tion which shall tend to forward the expedition or to add to
the comfort or maintenance of those who are engaged in it.
OFFENSES AGAINST NEUTRALITY 359

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 mili-
tary operations are evident enough. They are concert of
action, unity of action by a body organized and acting to-
gether, acting by means of weapons of some kind, acting un-
der command, leadership: these are the three most essential
elements of military action.”

The Court held in United States vs. O’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 necessary
that the vessel should actually sail, nor is it necessary 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 testi-
mony which showed that the steamship of which the de-
fendant 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 ap-
proached the coast of Cuba at night, the lights were extin-
guished 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 be-
lieve 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 illustrat-
ing the construction of the statute with reference to such
phases by the Court, are the following: U. S. vs. Pirates, 5
360 OFFENSES AGAINST NEUTRALITY

Wheat., 184; U. S. vs. Hallock, 154 U. S., 537; Duvall 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; Hendricks vs. Gonzales, 67 Federal, 351;
U.S. vs. Pena, 69 Federal, 983; U. S. vs. O’Brien, 75 Fed-
eral, 900. The Supreme Court, in United States vs. Quincey,
6 Peters, 445, gives the substance of the form of an indict-
ment. This was a case for the fitting out of a foreign vessel
in an American port.

§ 241. Enforcement of Foregoing Provisions.—
Section 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 augmented,
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 ef 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 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 pre-
venting 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.”
OFFENSES AGAINST NEUTRALITY 361

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 authority 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.

§ 24la. The President’s Authority Under This Sec-
tion.—£xr parte Orozco, 201 Federal, 107.

§ 242. Compelling Foreign Vessels to Depart.—
Old Section 5288 becomes new Section 15, which is as fol-
lows:

“Sec. 15. It shall be lawful for the President, or such per-
son 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, give bond to the United
States, with sufficient sureties, in double the amount of the
value of the vessel and cargo on board, including her arma-
ment, conditioned that the vessel shall not be employed by
such owners to cruise or commit hostilities against the sub-
jects, citizens, or property of any foreign prince or state, or
of any colony, district, or people with whom the United
States are at peace.”
362 OFFENSES AGAINST NEUTRALITY

The Supreme Court, in United States vs. Quincey, 6
Peters, 445, 8 Law Ed., 458, held that the statute did not pro-
hibit 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 foreign 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 de-
tain 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 author-
ized to detain vessels, although manifestly built for warlike
purposes, and about to depart from the United States, un-
less circumstances shall render it probable that such vessels
are intended to be employed by the owners to commit hostili-
ties against some foreign power at peace with the United
States. All the latitude, therefore, necessary for commercial
purposes, is given to our citizens and they are restrained only
from such acts as are calculated to involve the country in
war.

In Hendricks vs. Gonzales, 67 Federal, 351, the Circuit
Court of Appeals for the Second Circuit used this language:

“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 belligerent port for sale as
articles of commerce; and neutrals may lawfully sell at home
to a belligerent purchaser, or carry themselves to the bellig-
erents, articles which are contraband of war. It is the right
of the other belligerent power to seize and capture such
OFFENSES AGAINST NEUTRALITY 363

property in transit; but the right of the neutral state to sell
and transport, and of the:hostile power to seize, are conflict-
ing 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 ordinarily the punish-
ment of the ship is satisfied by visiting upon her the loss of
time and freight and expenses which she incurs in conse-
quence of her complicity. On the other hand, it is the duty
of every Government 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 con-
strued 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 marque, 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 prevent
the prosecution or punishment of treason, or any piracy de-
fined 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.
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.

§ 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 Gov-
ernment 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 respective States. There are also some
Federal citizenship rights, but they are few in comparison
to State citizenship rights. While the Federal Government
has authority, under the Federal Constitution, and partic-
ularly under Amendments Six, Thirteen, and Fourteen to
that instrument, to enforce certain private rights for the in-
dividual at the hands of the State, the vast majority of in-

364
RIGHTS OF CITIZENS 365

dividual rights are to be enforced by the State Governments.

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 petition
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 en-
gaged in the service or kept in the custody of the United
States in the course of the administration of justice, to be pro-
tected 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 fol-
lowing cases: United States vs. Cruikshank, 92 U. 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 some-
what added to by later cases, that will be noticed in the
discussion under old Section 5508, which becomes new Sec-
tion 19.

Difficult, indeed, it is to invariably trace the line between
the authorities and limitations of the two sovereignties;
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 limitations that
must, for the perpetuity of our republic, be observed.

§ 247. Conspiracy to Injure, Etc., Citizens in the
Exercise of Civil Rights.—Section 5508 of the 1878 Re-
vised Statutes becomes Section 19 of the new Code, in the
following words:

“Sec. 19. If two or more persons conspire to injure, op-
press, threaten, or intimidate any citizen in the free exer-
cise 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 enjoy-
ment 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 in-
eligible to any office, or place of honor, profit, or trust created

by the Constitution or laws of the United States.”
366 RIGHTS OF CITIZENS

Bearing in mind the two sorts of rights that each individual
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 understood that the foregoing sec-
tion can only relate to and protect such rights as are guar-
anteed 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, District
Judge Newman held that an indictment which charged the
defendants with conspiring, etc., to intimidate B, a citizen of
the United States, in the free exercise of his privilege to con-
tract and being contracted with, his right of personal secur-
ity and personal liberty, and the overt act charged was the
seizing of B, the placing of handcuffs 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 citizen’s 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 de-
fendants 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 prosecution would have sustained, (it
being for a conspiracy to prevent certain persons from vot-
ing), had the indictment 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 fot
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, pros-
pect for minerals, initiate, locate, establish, and perfect a
mining claim upon the public lands of the United States un-
der the public land of the United States, etc.), was good, and
RIGHTS OF CITIZENS 367

that a prosecution therefor could be sustained under this sec-
tion.

In Davis vs. United States, 107 Federal, 753, the Circuit
Court of Appeals for the Sixth Circuit affirmed a conviction
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 Federal
officials.

In Karem vs. United States, 121 Federal, 250, the Circuit
Court of Appeals for the Fifth Circuit, in a prosecution under
this section, held that the power of Congress, to legislate
on the subject of voting at purely State elections, is entirely
dependent upon the Fifteenth Constitutional Amendment,
and is limited by such amendment to the enactment of ap-
propriate 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 addressed to action by the United
States or a State, appropriate legislation for its enforce-
ment must also be addressed to State action, and not to the
action of individuals. In that case, the Court held, in sub-
stance, that a penal act of Congress cannot be sustained, as an
exercise 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 indictment framed under this
section, which charged in substance that he and others had
conspired, etc., to intimidate certain persons of color, who
were citizens of the United States and of the State of Ken-
tucky, qualified voters, etc., from exercising a right and
privilege secured to 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 be-
ing for State and municipal officers of Kentucky only. The
defendants were convicted. The contention of the Govern-
ment before 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
368 RIGHTS OF CITIZENS

Government protected him in his right, even against the
acts of individuals. The Fifteenth Amendment to the Con-
stitution reads as follows:

“Section 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 en-
force this Article by appropriate legislation.”

The Courts had already decided that this Constitutional
Amendment did not confer the right of suffrage upon any-
one, 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 guaranteed 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, therefore, and not indivudual
action,”’ said the Court, “‘is the subject of this Article. The
right to vote in purely State elections being, as we have seen,
aright 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 ad-
dressed 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 any State deprive any person of life, liberty,
or property, without due process of law; nor deny to any
poe within its jurisdiction, the equal protection of the
aws,”’

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;
ev parte Virginia, 100 U. S., 339, 25 Law Ed., 676, the Cruik-
shank case, cited supra; United States vs. Harris, 106 U. S.,

629, 27 Law Ed., 290; Virginia vs. Rives, 100 U. S., 313, 25
Law Ed., 667; Civil Rights case, 109 U. S., 3, 37 Law Ed.,
RIGHTS OF CITIZENS 369

835; Chicago, etc. Railroad vs. Chicago, 166 U. S., 226, 41
Law Ed., 979.’’ Of course, if the individual acts as an in-
strument or agency of the State, and presumes to act by
the authority of the State, then this section would be eper-
ative. Same authorities. And the Court reversed the con-
viction, 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.

§ 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 citizens from
exercising the right to lease and cultivate land, because they
were negroes, etc., held that Congress has the power, under
the Thirteenth Constitutional Amendment, to protect
citizens of the United States in the enjoyment 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 Rights 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, en-
croachments by State authority alone are mentioned; but
the Thirteenth Amendment includes everybody within the
jurisdiction 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 Slaughter-
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,

24
370 RIGHTS OF CITIZENS

and to enjoy equally with them the fruits of his labor. All
the right to lease land, said Judge Trieber, and to accept
employment as a laborer for hire, are fundamental rights, in-
herent in every free citizen, and a conspiracy to prevent the
negro from exercising these rights, because he is a negro, is a
conspiracy to deprive him of the privilege secured by the
Constitution and laws of the United States, within the mean-
of the Section 5508.

The Circuit Court of Appeals for the Eighth Circuit, in
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 Thir-
teenth 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 lib-
eral 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 under such guards night and day, and worked on the
farm in clearing and ditching, few, if any, receiving the
promised 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 violating this sec-
tion, 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 pro-
cess; as a result of which conspiracy 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 de-
RIGHTS OF CITIZENS 371

fense 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 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
Section 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 lawfully acquitted
of the alleged State offense, by a State Court having full juris-
diction in the premises. This interpretation 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 prevent the trial of the defendants upon the
charge of conspiracy, and their punishment, if guilty, ac-
cording 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 deter-
mined by a tribunal of competent jurisdiction—the only one
that could finally determine the question—that' the de-
fendants did not murder Walker. The Federal Court may,
therefore, proceed as indicated in 5508, without 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 U. 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 tiegro citizens, by force and intimidation, to de-
sist from performing their contracts of employment, re-
versed 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 opinion of the
Court, by Judge Brewer suggests that prior to the post-
372 RIGHTS OF CITIZENS

bellum Amendments to the Constitution, the national Gov-
ernment had no jurisdiction over a wrong like that charged in
this indictment. The Fourteenth and Fifteenth Amend-
ments 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 Thir-
teenth Amendment vests in the nation the jurisdiction
claimed, the remedy must be sought through State action,
and in State tribunals, subject to the supervision of this
Court, by writ of error, in proper cases. The things de-
nounced by the Thirteenth Amendment are slavery and in-
voluntary servitude, and Congress is given power to enforce
that denunciation. While the inciting cause of the Amend-
ment 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 declara-
tion 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 individual
thereof. Slavery or involuntary servitude of the Chinese, of
the Italian, of the Anglo Saxon, are as much within its com-
pass as slavery or involuntary servitude 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 per-
form contracts. The Court continues:

“At the close of the Civil War, when the problem of the
emancipated slaves was before the nation, it might have
left them in a condition of aliens; or established them as
wards of the Government, 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 jurisdic-
tion. By the Fifteenth, it prohibited any State from deny-
ing the Te of suffrage, on account of color, race, or pre-
vious condition of servitude; and by the Thirteenth, it for-
bade slavery or involuntary 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 in-
dictment.”
RIGHTS OF CITIZENS '373

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; Rig-
gins 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 question 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 ren-
dition 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 placed 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 section
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, and Constitu-
tional Amendment 17 making similar provisions for United
States senators, and the Act of June 4, 1914, 38 Stats. 384,
374 RIGHTS OF CITIZENS

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 election of representatives, the right to
vote for representatives in Congress and United States
senators, and to serve as members of the election boards
where such representatives 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 en-
joyed 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 information about violations of
the Revenue Laws, is an offense under this Section. 1 Fed-
eral 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 con-
spiracy, beating 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 lead-
ing 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., 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.
RIGHTS OF CITIZENS 375

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 Fed-
eral, 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 Federal, 356; also 54 Federal, 338.

It may, therefore, be stated with comparative satisfaction
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 of-
fenses 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 becoming free, independent, and sovereign. What
these fundamental principles are, it would be more tedious
than difficult to enumerate. They may all, however, be
comprehended 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 restraints 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 Government, and all of its agencies,
persons, and entire officialdom; 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
Amendment, punish all sorts of peonage and enforced labor.

Any mob, however, or aggregation of private individuals
that act independently of a State or Government that at-
tacks the negro race or other races, commit no Federal
offense. Such offenders are to be punished by the laws of
the State.
376 RIGHTS OF CITIZENS

§ 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 mis-
demeanor be committed, the offender shall be punished for
the same with such punishment as is attached to such felony
or misdemeanor by the laws of the State in which the of-
fense is committed.”

The section does not embrace any felony or misdemeanor
against a State, of which, prior to the trial in the Federal
Court. of the Federal offense, the defendants had been law-
fully acquitted by a State Court having full jurisdiction.
As the Federal Court accepted the judgment of a State
Court, construing the meaning and scope of the State en-
actment, 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 be-
comes Section 20 of the new Code, which is in the following
words:

“Sec. 20. Whoever, under color of any law, statute, ordi-
nance, regulation, or custom, wilfully subjects, or causes to
be subjected, any inhabitant of any State, Territory, or Dis-
trict to the deprivation of any rights, privileges, or immuni-
ties secured or protected by the Constitution and laws of the
United States, or to different punishments, pains, or penal-
ties, on account of such inhabitant being an alien, or by
reason of his color, or race, than are prescribed for the pun-
ishment of citizens, shall be fined not more than one thous-
and 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 excluded un-
der some color of law, statute, ordinance, regulation, or cus-
tom 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
RIGHTS OF CITIZENS 377

United States, Etc.—Section 5518 of the old Statutes be-
comes Section 21 of the new Code, as follows:

“Sec: 21. 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, Terri-
tory, District, or place, where his duties as an officer are re-
quired to be performed, or to injure him in his person or
property 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 gen-
eral 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 im-
prisoned 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, in-
timidation, order, advice, or otherwise, prevents, or attempts
to prevent, any qualified voter of any State from freely ex-
ercising the right of suffrage at any general or special elec-
tion 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 pre-
scribes or fixes, or attempts to prescribe or fix, whether by
proclamation, order, or otherwise, the qualifications of voters
378 RIGHTS OF CITIZENS

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, in-
timidation, order, or otherwise, compels, or attempts to
compel, any officer holding an election in any State to re-
ceive a vote from a person not legally qualified to vote, or
who imposes, or attempts to impose, any regulations for con-
ducting any general or special election in a State different
from those prescribed by law, or who interferes in any man-
ner with any officer of an election in the discharge of his
duty, shall be punished 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.”
CHAPTER XII.

OFFENSES AGAINST FOREIGN AND INTERSTATE COMMERCE

§ 258.

258a.
259.

260.
261.
262.
263.
264.

265.

265a..

266.

267.

267a.

268.

268a.

269.
270.
271.
271a.
271b.
271c.
271d.
271e.
2718.

Dynamite, Etc., not to be Carried on Vessels or Vehicles Carry-
ing Passengers for Hire.

Explosives.

Interstate Commerce Commission to Make Regulations for
Transportation of Explosives.

Liquid Nitro-Glycerine, Etc., Not to be Carried on Certain
Vessels or Vehicles.

Marking of Packages of Explosives—Deceptive Marking.

Death or Bodily Injury Caused by Such Transportation.

Importation and Transportation of Lottery Tickets, Etc.

Interstate Shipment of Intoxicating Liquors, Delivery to be Made
Only to Bona Fide Consignee.

Common Carrier, Etc., not to Collect Purchase Price of Inter-
state Shipment of Intoxicating Liquors.

Decision Under Last Statute.

Packages Containing Intoxicating Liquors Shipped in Interstate
Commerce to be Marked as Such.

Importation of Certain Wild Animals, Birds, and Reptiles For-
bidden.

Migratory Game—Birds.

Transportation of Prohibited Animals.

Constitutionality of Statute.

Marking of Packages.

Penalty for Violation of Preceding Sections.

Depositing Obscene Books, Etc., with Common Carrier.

The Statute is Constitutional.

Anti-Pass Law.

Theft of Goods in Interstate Commerce.

Cotton Future Contracts.

Opium or Coco Leaves, Their Salts, Derivatives or Preparations.

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

379
380 FOREIGN AND INTERSTATE COMMERCE

4278 and 5353 of the old Statutes are shorn of their cumber-
someness and broadened by new Section 232, in the follow-
ing words:

“Sec. 232. It shall be unlawful to transport, carry, or
convey, any dynamite, gunpowder, or other explosive, be-
tween a place in a foreign country and a place within or sub-
ject 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 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
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 examina-
tion, 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 deter-
mined in Section 235, wherein Congress provides, that,
““Whoever shall knowingly violate or cause to be violated
Benne 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.

§ 259. Interstate Commerce Commission to Make
Regulations for Transportation of Explosives.—Old
Sections 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:
FOREIGN AND INTERSTATE COMMERCE 381

“Sec. 233. The Interstate Commerce Commission shall
formulate regulations for the safe transportation of ex-
plosives, which shall be binding upon all common carriers en-
gaged in interstate or foreign commerce which transport ex-
plosives 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 desir-
able by new information or altered conditions. Such regula-
tions 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 pre-
cautions necessary to determine whether the material when
offered is in proper condition to transport. Such regulations,
as well as all changes or modifications thereof, shall take ef-
fect ninety days after their formulation and publication by
said commission 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 con-
dition, or other like 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 one State, Terri-
tory, or District of the United States, or place non-contigu-
ous 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 passengers or
articles of commerce. It will be noted, however, that this
section (234) and Section 233, above quoted, and Section
235, hereinafter set out, seem to have 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 Committee 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:
382 FOREIGN AND INTERSTATE COMMERCE

“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 deceptive marking, description, invoice, shipping or-
der, or other declaration, 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 know-
ingly violate, or cause to be violated, any provision of this
section, or of the three sections last preceding, or any regula-
tion made by the Interstate Commerce Commission in pur-
suance thereof, shall be fined not more than two thousand
Serna or imprisoned not more than eighteen months, or

oth.”

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
Transportation.—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 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 transported, or while the same is
being removed from such vessel or vehicle, the person know-
ingly 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-
ment, 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
FOREIGN AND INTERSTATE COMMERCE 383

thereof, from any foreign country, for the purpose of dispos-
ing of the same, any paper, certificate, or instrument pur-
porting to be or to represent a ticket, chance, share, or in-
terest in or dependent upon the event of a lottery, gift enter-
prise, 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 ex-
press company or other common carrier for carriage, or shall
carry, from one State, Territory, or District of the United
States, or place non-contiguous to but subject to the jur-
isdiction thereof, to any other State, Territory, or Dis-
trict 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, certifi-
cate, 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, certificate, instrument, advertise-
ment, or list so brought, deposited, or transported, shall, for
the first offense, be fined not more than one thousand dol-
lars, 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 lot-
tery tickets from a State to a Territory, etc., or from a Terri-
tory to a State; the language being “from one State to an-
other.” This new statute covers the entire ground, and pro-
tects Territories, Provisional Governments, foreign countries,
States, and non-contiguous territory subject to the juris-
diction of the United States. This limitation has been held
to be Constitutional, in France vs. United States, 164 U. S.,
676; Champion vs. Ames, 188 U. S., 321; and Francis vs.
United States, 188 U..S., 375.
384 FOREIGN AND INTERSTATE COMMERCE

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 com-
pleted, is not a paper certificate or instrument purporting
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 depends 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 tickets
from one State to another, by an express company, engaged
in carrying freight and packages from State to State, is in-
terstate commerce, which Congress, under its power to regu-
late, 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, written 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 opinion, 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 agen-
cies (in this case, in Kentucky), selected three or more num-
bers, wrote them on a slip, and handed the slip to the agent
(in this case, to the defendant Hoff) 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
principal 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 from Ken-
tucky 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 purchaser and the lottery,
when put into Hoff’s hands in Kentucky. They had reached
FOREIGN AND INTERSTATE COMMERCE 385

their final destination in point of law, and their later move-
ments 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 posses-
sion, 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 independent 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 in-
terest in a lottery; but these papers did not leave Kentucky.”

§ 264. Interstate Shipment of Intoxicating Li-
quors; Delivery to be Made Only to Bona Fide Con-
signee.—Brand new legislation is Section 238 of the new
Code, which reads as follows:

“Sec. 238. Any officer, agent, or employee of any rail-
road company, 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,
fermented, or other intoxicating liquor of any kind which
has been 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 Dis-
trict 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 juris-
diction 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 ficti-
tious person; third, the liquor must not be delivered to any
person under a fictitious name. Of course, if the liquor be

26
386 FOREIGN AND INTERSTATE COMMERCE

consigned to a bona fide consignee, such consignee may give a
written order to another person to receive the liquor.

§ 265. Common Carrier, Etc., Not to Collect Pur-
chase Price of Interstate Shipment of Intoxicating
Liquors.—aAll 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. O. 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 common carrier, or any other person who, in connec-
tion with the transportation of any spirituous, vinous,
malted, fermented, or other intoxicating 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
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 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 sell-
ing or completing the sale thereof, saving only in the actual
transportation and delivery of the same, shall be fined not
more than five thousand dollars.”

It will be noted that no part of the purchase price shall be
collected by the carrier from the consignee before delivery,
at the time of delivery, or after delivery; nor can such col-
lection 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 buy-
ing or selling, or completing the 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: Complaints
were made that shipments of liquor would be made from
one State to another, in which the sale of liquor was pro-
FOREIGN AND INTERSTATE COMMERCE 387

hibited, and that the bill of lading would be attached to a
draft, and forwarded through banks for collection, the con-
signee 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, decided 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 prose-
cution under this Statute, while Judge Amidon held in U. S.
vs. First National Bank of Anamoose, 190 Federal, 336, that
under a state of facts which is substantitally mentioned, the
collecting bank would be liable to prosecution and would be
guilty of a violation of the statute. Judge Amidon reviews 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 Cir-
cuit, 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 collection by a bank of a
sight draft for the purchase price of liquor transported in
interstate commerce and the delivery 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 Sec-
tion 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.

§ 266. Packages Containing Intoxicating Liquors
Shipped in Interstate Commerce to be Marked as
Such.—Other new legislation upon the subject of interstate
carriage 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 juris-
diction 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
388 FOREIGN AND INTERSTATE COMMERCE

thereof, any package of or package containing any spiritu-
ous, vinous, malted, fermented, or other intoxicating liquor
of any kind, unless such package be so labeled on the out-
side 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 trans-
gressions by the carrier, Section 240 creates a new offense
for the shipper and does not relate, in any sense, to the car-
rier. Under other internal revenue decisions, the marking
and branding of this Section will be construed 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 con-
signee, the nature of the contents of the package, and the
quantity of the contents.

§ 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 Secre-
tary of Agriculture may from time to time declare to be in-
jurious 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: Provided, that nothing in this
section shall restrict the importation of natural history
specimens 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 authorized to make
ae 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
FOREIGN AND INTERSTATE COMMERCE 389

wild geese, wild swans, brant, wild ducks, snipe, plover, wood-
cock, 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 de-
stroyed or taken contrary to regulations hereinafter provided
therefor.

“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 temperature, breeding
habits, and times and line of migratory flight, thereby enab-
ling the department to select and designate suitable districts
for different portions of the country, and it shall be unlaw-
ful to shoot or by any device kill or seize and capture mi-
gratory, 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 preparation 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, per-
mitting, 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 territories 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 regulations 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 Federal,
154, held the Act to be unconstitutional. He holds that mi-
gratory birds are not, when on their usual migration, the
property of the United States within sub-section 2 of Section
390 FOREIGN AND INTERSTATE COMMERCE

3 of Article 4 of the Federal Constitution 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 capacity, 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.

§ 268. Transportation of Prohibited Animals.—
Taken 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. Thompson,
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 Federal, U. S. vs. Thompson, and page
423 of the 115 Federal, United States vs. Smith. In the last
case, the Court held that it was essential, to constitute the
offense under the provisions of the section, that the prohib-
ited 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 com-
FOREIGN AND INTERSTATE COMMERCE 391

merce, 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 carrier, was insuffi-
cient.

§ 268a. Constitutionality of Statute.—This statute
has been held constitutional by the Circuit Court of Appeals
for the Eighth Circuit in Rupert vs. U. S., 181 Federal, 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 pur-
pose of being shipped and transported 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. McCullagh, 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 com-
merce shall be plainly and clearly marked, so that the name
and address of the shipper, and the nature 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 know-
ingly receiving such articles so shipped and transported in
392 FOREIGN AND INTERSTATE COMMERCE

violation of said sections 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.”

§ 271. Depositing Obscene Books, Etc., with Com-
mon 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, Terri-
tory, or District of the United States, or place non-con-
tiguous 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 other common carrier any matter or thing the depositing
of which for carriage is herein made unlawful, shall be fined
not more than five thousand 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 car-
rier, or express company.

The meat of the statute is substantially the same as Sec-
tion 211 of the new Code, which relates to obscene matter,
etc., as being non-mailable, and which is denounced in
Section 211 of the new Code, heretofore treated.

§ 27la. 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, whether
FOREIGN AND INTERSTATE COMMERCE 393

by a Federal utility or otherwise, is beyond dispute. Lot-
tery 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 section
challenging the constitutionality of the statute was over-
ruled in Clark vs. U. S., 211 Federal, 916. In the Clark
case it was also determined that when the indictment did not
limit the charge to particular passages or parts of a book,
the defendants were entitled to have the whole book in-
troduced in evidence and considered by the jury under
proper instructions from the Court.

§ 271. 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 transporta-
tion for passengers, except to its employees and their
families, its officers, agents, surgeons, physicians, and at-
torneys-at-law; to ministers of religion, traveling secretaries
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 indigent, destitute and homeless persons, and to such
persons when transferred by charitable societies or hospitals,
and the necessary agents employed in such transfer; to in-
mates of the National homes or State homes for disabled
volunteer soldiers, and of soldiers and sailors homes, includ-
ing those about to enter and those returning home after dis-
charge, and boards of managers of such homes; to neces-
sary 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 inspectors and immigrant in-
spectors; to newsboys on trains, baggage agents, witnesses
attending any legal investigation in which the common
carrier is interested, persons injured in wrecks, and physi-
cians and nurses attending such persons: Provided, that
this provision shall not be construed to prohibit the inter-
change of passes for the officers, agents and employees of
common carriers and their families; nor to prohibit any com-
mon 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 fur-
loughed, pensioned and superannuated employees, persons
394 FOREIGN AND INTERSTATE COMMERCE

who have become disabled or infirm in the service of any
such common carrier, and the remains of a person killed in
the employment of a carrier, and ex-employees traveling for
the purpose of entering the service of any such common car-
rier; 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, shall 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 car-
riers as are included in the said Act.

It is not thought that the Section would justify the prose-
cution of one who stole tickets or passes or other trans-
portation 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 trans-
portation issued or given directly or indirectly by a common
carrier.

The Act does apply to one, who, having in his possession
an interstate free ticket or pass issued by a railroad com-
pany, 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.

§ 27lc. 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, pro-
vides as follows:

“That whoever shall unlawfully break the seal of any rail-
road car containing interstate or foreign shipments of freight
or express, or shall enter in such car, with intent, in either
case, to commit larceny therein; or whoever shall steal or un-
lawfully take, carry away or conceal, or by fraud or decep-
tion obtain from any railroad car, 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
FOREIGN AND INTERSTATE COMMERCE 395

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 in-
tent to convert to his own use, any baggage which shall have
come into the possession of any common carrier for trans-
portation 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 Territory, 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 article 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 committed. The carrying or transporting of any
such freight, express, baggage, 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 of-
fense, and subject the offender to the penalties above de-
scribed for unlawful taking, and the prosecutions therefor
may be instituted in any District into which said freight,
express, baggage, goods or chattels 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 jurisdiction of the Fed-
eral Government over interstate commerce, and the Courts,
in enforcing the same, should apply all of the rigid rules of
strict construction that have been formulated in criminal
cases. As a matter of fact, thefts committed from inter-
state 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 a useful statute, in many ways it is also a far-
reach of the Federal Government.

§ 271d. Cotton Future Contracts.—The Act of Aug-
ust 18, 1914, provides that it shall be known as the United
States Cotton Futures Act. In the second Section thereof
396 FOREIGN AND INTERSTATE COMMERCE

it defines contract of sale and the meaning of the word per-
son, 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 Agriculture shall, from
time to time, after investigation, determine and designate to
be such, and of which he shall give public notice.

Section 8 tells what markets the Secretary may consider.

Section 9 establishes certain standards of cotton.

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 here-
of, shall be deemed guilty of a misdemeanor, and upon con-
viction 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 addition, be punished by imprisonment for
for not less than 60 days nor more than 3 years, in the dis-
cretion of the Court.”

Section 16 rewards informants and makes it the duty of
District Attorneys to prosecute.

Section 17 provides for immunity.
FOREIGN AND INTERSTATE COMMERCE 397

§ 271e. Opium, or Cocoa Leaves, Their Salts, De-
rivatives or Preparations.—The production, importa-
tion, manufacture, compounding, sale, dispensing, or giv-
ing away of opium, or cocoa leaves, their salts, derivatives
or preparations, was regulated and prohibited in the man-
ner indicated by the following statute, which was the Act
of December 17, 1914:

“That on and after the first day of March, nineteen hun-
dred and fifteen, every person who produces, imports, manu-
factures, compounds, deals in, dispenses, sells, distributes, or
gives away opium or cocoa leaves or any compound, manu-
facture, 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 person who produces, im-
ports, manufactures, compounds, deals in, dispenses, 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
annum: Provided, that no employee of any person who pro-
duces, imports, manufactures, compounds, deals in, dis-
penses, sells, distributes, or gives away any of the afore-
said 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 em-
ploys 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 Serv-
ice, 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 hos-
pitals or prisons, and officials of any territory or insular pos-
session or the District of Columbia or of the United States
who are lawfully engaged in making purchases of the above-
named drugs for hospitals or prisons therein shall not be re-
quired 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, manufac-
ture, compound, deal in, dispense, sell, distribute, or give
away any of the aforesaidfdrugs without having#registered
and paid the special tax provided for in this section.
398 FOREIGN AND INTERSTATE COMMERCE

“That the word ‘person’ as used in this Act shall be con-
strued to mean and include a partnership, association, com-
pany, or corporation, as well as a natural person; and all
provisions of existing law relating to special taxes, so far as
applicable, including the provisions of section thirty-two
hundred and forty of the Revised Statutes of the United
oe are hereby extended to the special tax herein im-
posed.

That the Commissioner of Internal Revenue, with the ap-
proval of the Secretary of the Treasury, shall make all need-
ful rules and regulations 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, ex-
change, or give away any of the aforesaid drugs, shall pre-
serve such order for a period of two years in such a way as to
be readily accessible 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 givean order as herein provided to any 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
thereof on a form to be issued in blank for that purpose by
the Commissioner of Internal Revenue, and in case of the ac-
ceptance 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 veter-
inary surgeon registered under this Act in the course of his
professional practice only: Provided, that such physician,
dentist, or veterinary surgeon shall keep a record of all such
drugs dispensed or distributed, showing the amount dis-
pensed or distributed, the date, and the name and address
of the patient to whom such drugs are dispensed or dis-
tributed, 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
ute such drugs, subject to inspection, as provided in
this Act.
FOREIGN AND INTERSTATE COMMERCE 399

“(b) To the sale, dispensing, or distribution of any of the
aforesaid drugs by a dealer to a consumer under and in pur-
suance of a written prescription issued by a physician, den-
tist, or veterinary surgeon registered under this Act: Pro-
vided, however, that such prescription shall be dated as of
the day on which signed and shall be signed by the physi-
cian, dentist, or veterinary surgeon who shall have issued the
same: And provided further, that such dealer shall pre-
serve 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 inspection 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 Territory 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 for-
eign country as are prescribed by said country, such regula-
tions to be promulgated from time to time by the Secre-
tary 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 government lawfully engaged in mak-
ing purchases thereof for the various departments of the
Army and Navy, the Public Health Service, and for Govern-
ment, State, territorial district, county, or municipal or in-
sular hospitals or prisons.

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 by them to those persons who shall have
registered and paid the special tax as required by Sec-
tion 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 re-
quired 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 ap-
proval 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 purchasers. 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 de-
livering the same; and no person other than such pur-
chaser shall use any of said forms bearing the name of such
400 FOREIGN AND INTERSTATE COMMERCE

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 purpose 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 Philip-
pine 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 hereunder in Porto Rico and the Philip-
pine Islands shall accrue intact to the general governments
thereof, respectively. ‘The Courts of first instance in the
Philippine Islands shall possess and exercise jurisdiction in
all cases arising under this Act in said islands. The Presi-
dent is authorized and directed to issue such Executive or-
ders as will carry 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, dis-
tribute, 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 cor-
rect statement or return, verified by affidavit, setting forth
the quantity of the aforesaid drugs received by 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 re-
ceived; the quantity in each instance 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 Dis-
trict of Columbia, or any insular 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
FOREIGN AND INTERSTATE COMMERCE 401

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 pre-
scriptions required 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 offi-
cers, agents, and employees of the Treasury Department
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, pre-
scribing, dispensing, dealing in, or distribution of the afore-
said 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 in-
sular 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 fee of $1 for each one
hundred words or fraction thereof in the copy or copies so
requested. Any perscn 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 enforcing 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 insular pos-
session of the United States, or ordinance of any organized
municipality therein, regulating the sale, prescribing, dis-
pensing, dealing in, or distribution of the aforesaid drugs,
shall on conviction, be fined or imprisoned as provided by
Section 9 of this Act. And collectors of internal revenue are
hereby authorized to furnish upon written 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 frac-
tion 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, dis-

26
402 FOREIGN AND INTERSTATE COMMERCE

pensing, 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 of 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 substitute for them: Provided, that such remedies
and preparations are sold, distributed, given away, dis-
pensed, or possessed as medicines and not for the purpose
of evading 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 prepara-
tions of cocoa leaves which do not contain cocaine.

“Sec. 7. That all laws relating to the assessment, col-
lection, remission, and refund of internal-revenue taxes, in-
cluding 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 ap-
plicable 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 violation of the
provisions of Section 1 of this Act: Provided, That this
section shall not apply to any employee of a registered per-
son, or to a nurse under the supervision of a physician, den-
tist, or veterinary surgeon registered under this Act, having
such possession or control by virtue of his employment or oc-
cupation and not on his own account; or to the possession
of any of the aforesaid drugs which has or have been pre-
scribed in good faith by a physician, dentist, or veterinary
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 transport-
ing such drugs: Provided, further, that it shall not be neces-
sary to negative any of the aforesaid exemptions in any com-
plaint, information, indictment, or other writ or proceed-
ing 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 convic-
FOREIGN AND INTERSTATE COMMERCE 403

tion, 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 author-
ized 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 pro-
visions of the Act of Congress approved June 30, 1906, en-
titled ‘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 statute
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 Montana 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 thereunder, is made a felon and infamous,
and for this mere legal infraction, which is not in fact a true
crime, a consequence shockingly disproportionate to the
offense follows, and such a construction of the statute is
therefore antagonistic to sound criminal economics and is
abhorrent to justice. It is a corollary of criminal law that
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 defective in
substance. U.S. vs. Woods, 224 Fed. 280.
404 FOREIGN AND INTERSTATE COMMERCE

So in the case of U. S. vs. Friedman, 224 Fed. 277, which
was a prosecution against a physician for prescribing the
prohibited drugs in quantities more than was necessary
to meet the needs of a patient, and that they were not dis-
tributed, dispensed and prescribed in good faith as a medi-
cine, 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 dealers 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 pre-
sumptive 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 imposing 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, com-
prises certain regulations for the common carriers of inter-
state 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 reason-
able and just. It also defines the word Railroad.

Section 2 provides for special rates, and prohibits re-
bates in any way, directly or indirectly.

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.
FOREIGN AND INTERSTATE COMMERCE 405

Section 6 provides that printed schedules of rates shall be
posted, 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 common carrier subject to the provisions of this Act,
or, whenever such carrier is a corporation, any director, or
officer thereof, or any receiver 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 be 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 required 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 mis-
demeanor, and shall, upon conviction thereof in any Dis-
trict Court of the United States within the jurisdiction of
which such offense was committed, 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 pro-
vided for, be liable to imprisonment in the penitentiary for a
term of not exceeding two years, or both such fine and im-
prisonment, in the discretion of the Court.

“Any common carrier subject to the provisions of this
Act, or, whenever such common cartier 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 or willfully as-
sist, or shall willingly suffer or permit, any person or persons
to obtain transportation for property at less than the regular
rates then established and in force on the line of transporta-
406 FOREIGN AND INTERSTATE COMMERCE

tion of such common carrier, shall be deemed guilty of a mis-
demeanor, 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
to a fine of not exceeding five thousand dollars, or imprison-
ment in the penitentiary for a term of not exceeding two
Ne or both, in the discretion of the Court, for each of-
ense.

“Any person and any officer or agent of any corporation
or company who shall deliver property for transportation 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 willfully, by
false billing, false classification, false weighing, false repre-
sentation 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 transportation for such property at 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 con-
viction thereof in any Court of the United States of compe-
tent jurisdiction within the district in which such offense was
committed, be subject for each offense to a fine of not ex-
ceeding five thousand dollars or imprisonment in the peni-
tentiary 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, solicitation, 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 com-
pany, 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 ex-
ceeding five thousand dollars, or imprisonment in the peni-
tentiary for a term of not exceeding two years, or both, in
the discretion of the Court, for each offense; and such per-
son, 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 dis-
criminated against in any Court of the United States of
competent jurisdiction for all damages caused by or result-
ing therefrom. (25 Stat. L., 857.)”
FOREIGN AND INTERSTATE COMMERCE 407

Section 11 provides for the creation of an interstate com-
merce commission.

Section 12 defines the scope of the commission, provides 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 investigations,
and that such reports and decisions may be printed and dis-
tributed.

Section 15 provides for notice to the carrier of violations
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 subpoenaes.

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 sessions in
any part of the United States.

Section 22 provides for free carriage and reduced rates to
certain corporations and persons.
§ 272.
273.
274.
275.
276.
277.
278.
279.
280.
281.
282.
283.
284,
285.
286.
287.
288.
289.
290.
291.
292.
293.
294.
295.
296.
296a.
297.
298.

§ 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 Amend-

ments

§ 273.

CHAPTER XIII.
SLAVE TRADE AND PEONAGE.

Legislation Founded on Amendments.

Confining or Detaining Slaves on Board Vessel.
Seizing Slaves on Foreign Shore.

Bringing Slaves Into the United States.

Equipping Vessels for Slave Trade.

Transporting Persons to be Held as Slaves.

Hovering on Coast With Slaves on Board.

Serving in Vessels Engaged in Slave Trade.
Receiving or Carrying Away any Person to be Held as a Slave.
Equipping, Etc., Vessels for Slave Trade.

Penalty on Persons Building, Equipping, Etc., Vessels.
Forfeiture of Vessel Transporting Slaves.

Receiving Persons on Board to be Sold as Slaves.
Vessel Found Hovering on Coast.

Forfeiture of Interest in Vessels Transporting Slaves.
Seizure of Vessels Engaged in the Slave Trade.
Proceeds of Condemned Vessels—How Distributed.
Disposal of Persons Found on Board Seized Vessels.’
Apprehension of Officers and Crew.

Removal of Persons Delivered from Seized Vessels.
To What Port Captured Vessels Sent.

When Owners of Foreign Vessels Shall Give Bond.
Instructions to Commanders of Armed Vessels.
Kidnapping.

Holding or Returning to Peonage.

Involuntary Servitude, Etc..—Meaning of.
Obstructing Execution of Above.

Bringing Kidnapped Persons Into the United States.

to the Constitution.

408

Confining or Detaining Slaves on Board
Vessel.—Section 5375 of the 1878 Statutes, is practically re-
enacted in the new Code, as Section 246, with the excep-
SLAVE TRADE AND PEONAGE 409

tion that the word ‘“‘person’’ is substituted for the words
“negro or mulatto;” and such new section is as follows:

“Sec. 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, of-
fers 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 hav-
ing 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 company,
and that he received or detained on board one or more per-
sons 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. Westervelt, 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, forcibly bringing and carrying them on
board; third, decoying them; fourth, receiving them on
board of the vessel. ;

It is the intent to make a slave that constitutes the essen-
tials of the offense. Neither the seizing, nor forcibly bring-
ing or carrying, or receiving, a person on board, is any offense
without such intent. United States vs. Battiste, Second
Summ., 240; United States vs. Libby, 1 W. & M., 221;
United States vs. Corrie, Brun. Col. Cases, 686, 25 Fed-
eral Case No. 14869. In the Westervelt case, cited supra,
the landing and seizing of negroes, and the forcibly bring-
ing and carrying them on board comprehended 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, un-
der U. S. vs. Brown, 24 Federal Case No. 14656, as to the
ownership of the vessel, if the defendant is an American
citizen,
410 SLAVE TRADE AND PEONAGE

§ 274. Seizing Slaves on Foreign Shore.—Old Sec-
tion 5376 becomes Section 247 of the new Code, in the fol-
lowing 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
part, or navigated for, or on 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.”’

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 con-
victed or punished under this statute, unless he was of the
crew or ship’s company.

§ 275. Bringing Slaves Intothe United States.—Old
Section 5377 becomes Section 248 of the new Code, without
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 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.”

§ 276. Equipping Vessels for Slave Trade.—Sec-
tion 5378 of the old statutes becomes Section 249 of the new
Code, with the change of the words “‘negro, mulatto, or per-
son of color’ to the word “‘person:”’

“Sec. 249. Whoever builds, fits out, equips, loads, or
otherwise prepares, or sends away, either as master, factor, or
owner, any vessel, in any port or place within the jurisdic-
tion of the United States, or causes such vessel to sail from
any port or place whatsoever, within such jurisdiction, for
the purpose of procuring any person from any foreign king-
dom or country to be transported to any port or place
SLAVE TRADE AND PEONAGE 411

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 com-
mander 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 per-
son, 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.”

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 employed or made use of in the transportation
of slaves from any foreign country or place to another, shall
412 SLAVE TRADE AND PEONAGE

be fined not more than two thousand 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 jurisdic-
tion 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 254 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 jurisdic-
tion of the United States, or cause any vessel to sail from any
port or place within the jurisdiction of the United States for
the purpose of procuring any person from any foreign king-
dom, 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
SLAVE TRADE AND PEONAGE 413

was contrary to this legislation, and contrary to the Thir-
teenth 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
Section 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 in-
tending that the same shall be employed in such trade or
business, 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.”

§ 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 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 forfei-
ture 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 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 per-
son of color.”

§ 284. Receiving Persons on Board to be Sold as
Slaves.—Old Section 5554 becomes new Section 257 in
these words:
414 SLAVE TRADE AND PEONAGE

“Sec. 257. Whoever, being a citizen of the United States,
takes on board, receives, or transports any person for the pur-
pose 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 Bs use of the person who sues for and prosecutes 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 Sec-
tion 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 hav-
ing 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 effects on board
of her, be forfeited to the United States.”

The change in this section consists in the substitution of
the word “person” for the words ‘‘negro, mulatto, or person
of color.”

§ 286. Forfeiture of Interest in Vessels Transport-
ing 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 pace 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 section shall also forfeit and pay a
sum of money equal to double the value of his right or prop-
erty 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:
SLAVE TRADE AND PEONAGE 415

“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 slave trade, by citizens or resi-
dents of the United States, in contravention of laws pro-
hibitory of the same; and, in such case, he shall instruct the
commanders of such armed vessels to seize, take, and bring
into any port of the United States, to be proceeded against
according 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 aboli-
tion of prize money by Congress, as to require the proceeds
of all forfeitures to be paid into the Tresaury of the United
States, and is in the following words:

“Sec. 261. The proceeds of all vessels, their tackle, ap-
parel, 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,
mulatto, or person of color,’’ to the word “‘person,”’ 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.—Sec-
tion 5560 of the old Code becomes Section 263 of the new
Code in the following words:

“Sec. 263. The commanders of such commissioned ves-
sels shall cause to be apprehended and taken into custody
every person found on board of such offending vessel so
416 SLAVE TRADE AND PEONAGE

seized and taken, being of the officers or crew thereof, and
him convey, as soon as conveniently may 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, mulattoes,
or persons of color,”” becomes Section 264 of the new Code, as
follows:

“Sec. 264. The President is authorized to make such
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 jurisdiction.”

§ 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 adjudication, 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 kindgoms 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 Ves-
sels.—By changing the words ‘‘negroes, mulattoes, and
SLAVE TRADE AND PEONAGE 417

persons 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 becomes Sec-
tion 267 of the new Code, as follows:

“Sec. 267. The President is authorized to issue instruc-
tions 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 prosecution of
the slave trade; and they shall afterward bring the captured
vessels and persons engaged in 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 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 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 Sec-
tion 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 ar-
rest 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 Territory except the Territory of New Mexico. By
implication, this was overruled by United States vs. Mc-
Clellan, in 127 Federal, 971, by Judge Speer, and was directly
overruled by the Supreme Court of the United States in
Clyatt vs. United States, 197 U. S., 207, 49 Law Ed., 726;
the Supreme Court saying, in substance, that the prohibi-

27
418 SLAVE TRADE AND PEONAGE

tion 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 prohibition by appropriate legisla-
tion.

The statute, it will be noted, comprehends several differ-
ent forms of peonage, to wit, holding, arresting, returning, or
causing to be held, arrested or returned. In the Clyatt case,
the Supreme Court reversed the judgment of conviction,
because there was no evidence that the peons had been pre-
viously held in peonage, and the indictment charged that
there was a return to peonage. Of course, if the indictment
had charged holding in peonage, without returning to peon-
age, evidence would doubtless 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 com-
pulsory service, to secure the payment of a debt. Is this
legislation within the power of Congress? It may be con-
ceded, as a general proposition, that the ordinary relations of
individual to individual are subject to the control 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, ex-
cept as a punishment for crime, whereof the party shall have
been duly convicted, 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, ir-
respective of the manner or authority by which it is created.
The prohibitions of the Fourteenth and Fifteenth Amend-
ments are largely upon the acts of the States; but the Thir-
teenth Amendment names no party or authority, but simply
forbids slavery and involuntary servitude, grants to Congress
ie power to enforce this prohibition by appropriate legis-
ation.”

In the peonage cases, 123 Federal, 671, District Judge
Jones defined “‘the condition of peonage”’ to be to hold or re-
turn a person to enforced servitude, wherein the servitor is
SLAVE TRADE AND PEONAGE 419

restrained of his liberty, and compelled to labor in liquidation
of some debt or obligation, either real or pretended, 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 contract of employ-
ment was voluntarily made by the laborer; and it was en-
tirely 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 to
another that he was accused of crime, and to pretend to
prevent his conviction if he will pay a sum of money, 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 con-
stitutional if its natural and inevitable purpose is to punish
for crime for failing to perform contracts of labor, thus com-
pelling such performance. A constitutional prohibition can-
not be transgressed indirectly by creating a statutory pre-
sumption any more than by direct enactment, and a state
cannot compel involuntary servitude in carrying out con-
tracts of personal service by creating a presumption that
the person committing the breach is guilty of intent to de-
fraud merely because he fails to perform the contract. Bailey
vs. State of Alabama, 219 U. S., 219.

Peonage exists when convicted person are compelled to
labor out fines resulting from civil contracts. U. S. vs.
Reynolds, U. S. Supreme Court, October Term, 1914. One
420 SLAVE TRADE AND PEONAGE

cannot compel a laborer against his will to return to him and
work 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 threat-
ened the convict that if he refused to work out the debt,
he would have him arrested and put in jail, and that the con-
vict did not continue to work for the defendant under his
own free will, did not state an offense.

§ 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 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 bringinto
the United States or any place subject to the jurisdiction
thereof, any person inveigled or forcibly kidnapped in any
other country, with intent to hold such person so inveigled
or kidnapped in confinement or to any involuntary servitude;
or whoever shall knowingly and wilfully sell, or cause to be
sold, into any condition of involuntary servitude, any other
person for any term whatever; or whoever shall knowingly
and wilfully 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.”
CHAPTER XIV.

OFFENSES WITHIN THE ADMIRALTY, MARITIME, AND

TERRITORIAL JURISDICTION OF THE
UNITED STATES.

Note.—The first numbers indicate the old Sections; then follows a
dash, and after the dash the numbers indicate the Sections in the new

Code.

§ 299..
300.
301.
302.
303.
304.

305.

306.
307.
308.

309.
310.

311.

312.
313.
314.
315.
316.
317.
318.

Generally, Federal Territory.

Places Defined: New Code, 272.

Murder: 5339—273.

Murder Verdict: 29 Stat. L., 487.

Manslaughter: 5341—274,

Punishment for Murder and Manslaughter: 5339 and 5343—
275. j

Assault with Intent to Commit Murder, Rape, Robbery, Etc.:
5346—276.

Attempt to Commit Murder or Manslaughter: 5342—277.

Rape: 5343—278.

Having Carnal Knowledge of Female Under Sixteen: New Code,
279.

Seduction of Female Passenger on Vessel: 5349—280.

Payment of Fine to Female Seduced; Evidence Required; Limita-
tions on Indictment: 5350 and 5351—281.

Punishment for Loss of Life by Misconduct of Officers, Owners,
Charterers, Etc., of Vessels: 5344—282.

Maiming: 5348—283.

Robbery: 5370—284.

Arson of Dwelling House: 5385—285.

Arson of Arsenal, Etc.; Other Buildings, Etc.: 5386—286.

Larceny: 5356—287.

Receiving, Etc., Stolen Goods: 5357—288.

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 certain
specific national territory, within and upon which the com-
mission of the acts mentioned in this chapter become ex-
clusive Federal offenses. The offenses upon which Congress
has legislated under the head of admiralty, maritime, and

421
422 _ ADMIRALTY, MARITIME, ETC.

territorial jurisdiction of the Federal Government are mur-
der, manslaughter, intent to murder, rape, robbery, certain
carnal knowledge of the female, loss of life by misconduct of
the officers of a vessel, 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 of.

§ 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 jurisdic-
tion 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 be-
longing in whole or in part to the United States or any citizen
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 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 Law-
onde where the same constitutes the International boundary
ine.

“Third. When committed within or on any lands reserved
or acquired for the exclusive use of the United States, and
under the exclusive jurisdiction thereof, or any place pur-
chased or otherwise acquired by the United States by con-
sent 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 appertaining 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., Sec-
tion 8, of the Constitution. The first division of the section,
it will be noted, gives the jurisdiction to offenses upon cer-
tain waters. The second division gives jurisdiction to of-
ADMIRALTY, MARITIME, ETC. 423

fenses upon vessels when on certain waters. The third divi-
sion gives jurisdiction over offenses that are committed upon
lands over which the Government has acquired exclusive
jurisdiction, by purchase or otherwise; but it must be under-
stood that this division does not mean that there is any juris-
diction 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 Gov-
ernment to punish one who assaulted the postmaster in the
performance of his official duties, rests upon an entirely dif-
ferent statute, and is not grounded upon the section now be-
ing noticed. District Judge Whitson, in United States vs.
Tully, 140 Federal, 899, held in substance, that the jurisdic-
tion of a Federal Court to try a person for a criminal offense
on the ground that it was committed within a fort or mili-
tary 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 express
words or necessary implication. Judge Maxey, in 111 Fed-
eral, 630, United States vs. Lewis, held in substance, 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 ques-
tion 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,
424 ADMIRALTY, MARITIME, ETC.

being within territory which had not been 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 in-
dicted 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 until March 10, 1896; the defendant, in the meantime,
having 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 juris-
diction, the case was not one of wilful murder at Common
Law, under the Federal authorities; and that the United
States statute, Section 5339, though making the offense pun-
ishable 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 wil-
ful 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
Government 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 public land strip lying be-
tween Texas and New Mexico and Colorado and Kansas,
over which jurisdiction had been vested in the United
States after the commission of the offense of murder thereon,
ADMIRALTY, MARITIME, ETC. A425

was properly within the control of the Federal Courts, and
the offense punishable therein.

The fourth division relates to offenses upon certain islands,
rocks, or keys, which contain deposits of guano, the begin-
ning of which recognition was old Statute 5570, and is the
extending of sovereignty by the political power of the Gov-
ernment. 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 conquest.

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 applicable 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, un-
der 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 United States, when such vessel
is in the Detroit River, out of the jurisdiction of any partic-
ular 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
jurisdiction by discovery, and incidentally Section 5570 of
the old Code, and, therefore, the fourth division of the pres-
ent section. The Court held in that case, that,

“All courts of justice are bound to take judicial notice of
the territorial extent of the jurisdiction exercised by the Gov-
ernment whose laws they administer, or of its recognition or
426 ADMIRALTY, MARITIME, ETC.

denial of the sovereignty of a foreign power, as appearing
from the public acts of the legislature and executive, al-
though 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, alleged
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 ap-
prehend offenders there, that it is not necessary in the in-
dictment to plead the act of the General Assembly or Legis-
lature, because that is the general law, which it is pre-
sumed not only the Court, but the defendant, knew; nor is
it necessary to plead the title of the Government in the in-
dictment. 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 enlarges the Com-
mon 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 be-
ing with malice aforethought. Every murder perpetrated by
poison, lying in wait, or any other kind of wilful, deliberate,
malicious, and premeditated killing; or committed in the
Pee of, or attempt to perpetrate, any arson, rape,

urglary, 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
ot degree. Any other murder is murder in the second
egree.”’

The Common Law definition of murder was,
ADMIRALTY, MARITIME, ETC. 427

“Murder is where a person of sound memory and dis-
cretion, unlawfully and feloniously kills any human being in
the peace’ of the sovereign, with malice prepense, or afore-
thought, 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
discretion, unlawfully killeth, within any county of the
realm, any reasonable 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., within 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 intent to
take life without excuse.

Judge Maxey, in United States vs.~Lewis, 111 Federal,
630, said:

“Malice, when attempted to be defined, has been neces-
sarily 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 de-
note 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 murder; but malice, as essential to the crime of
murder, has a more extended meaning. A killing flowing
from an evil design in general may be of malice, and con-
stitute murder; as, a killing resulting 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 the 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
428 ADMIRALTY, MARITIME, ETC.

with a sedate and deliberate mind, and formed design, doth
kill another, which formed design is evidenced by external
circumstances, discovering that inward intention; as, lying
in wait, antecedent menaces, former grudges, and concerted
schemes to do bodily harm. It rarely, if ever, occurs that
express malice is proved upon the trial of acase. The exist-
ence or non-existence of malice is a matter to be determined
by the 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 surrounding facts, and that inference is one of
fact for the jury. ‘Jordan vs. State, 10 Texas, 492; 3 Rus-
sell 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 afore-
thought. It implies premeditation—a prior intent to do the
act. It may have existed but for a moment—an inappre-
ciably 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 justifiable homi-
cide and involuntary homicide, when, according to the testi-
mony of the accused, the death was due to an accident, and
according to all the other evidence, 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 cases arose, conta‘ned no provision for murder
in the second degree; in other words, the two degrees of
homicide were murder and manslaughter.

By the Common Law, both time and place were required
to be alleged. It is necessary that it should appear 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 con-
ADMIRALTY, MARITIME,, ETC. 429

trolling 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 pres-
ent statute is concerned, there are no differences upon this
point between it and the old statute, upon which the Ball
decision was rendered and the Common Law rules with ref-
erence to these matters must, therefore, be observed under
the new statute, 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 Colum-
bia affirmed 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 Common
Law, permitted prosecution in either the realm of the stroke
or the realm of the death. Section 731 of the Federal stat-
utes, 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 Ameri-
can 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 parti-
cular State.

§ 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 conviction of the higher of-
fense 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
430 ADMIRALTY, MARITIME, ETC.

adding thereto, “‘without capital punishment”; and when-
ever 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 reviewed 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 punishment 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 unlaw-
ful 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 several defi-
nitions, and notes Hawkins’ definition, which was this:
homicide against the life of another, amounting to felony,
is either with or without malice. That which is without
malice is called manslaughter, or sometimes chance-medley;
by which we understand such killing as happens either on a
sudden quarrel or in the commission of an unlawful act,
without any deliberate intention 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
panel in the death of a human being, within a year and a

ay.”

But whatever may have been the original Common Law
definition, the statute now under discussion fixes and defines
just what shall be manslaughter in the Federal jurisdiction.
An interesting expression of the Supreme Court, in Ander-
ADMIRALTY, MARITIME, ETC. 431

son 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 elapsed for the blood to cool, as
an offense of a less heinous character 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 en-
tertained; 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 pre-
sumption of malice negatived by previous provocation, hav-
ing no casual connection with the murderous act, or separated
from it by such an interval of time as gives reasonable op-
portunity 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 infirmity of
humen nature, and the punishment is, therefore, proportion-
ately lenient.

The Circuit Court of Appeals for the Fifth Circuit, in the
case of Roberts vs. United States, 126 Federal, 897, speak-
ing through Chief Justice Pardee, affirmed a manslaughter
charge by District Judge Meek, and his definition 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 ex-
cuse. The term ‘wilfully’ here 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 origin-
ally 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 de-
gree 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
432 ADMIRALTY, MARITIME, ETC.

ten years. Every person guilty of involuntary 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 murder, 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 unlaw-
fully 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 unlawfully assault another,
shall be fined not more than three hundred dollars, or im-
prisoned not more than three months, or both.”

In United States vs. Barnaby, 51 Federal, 20, the defend-
ant was charged in the indictment with an assault with in-
tent to commit murder, and the Court held that the indict-
ment was insufficient, where it merely charged that the de-
fendant made an assault with a knife upon a person named,
with intent him to kill, wilfully and feloniously, and of his
malice aforethought, without disclosing the character of the
knife, or averring that he struck him with it, or inflicted any
wound having a tendency to produce death.

§ 306. Attempt to Commit Murder or Manslaught-
er.—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
manslaughter, except as provided in the preceding section,
shall be fined not more than one thousand dollars and im-
prisoned not more than three years.”’

§ 307. Rape.—Section 5343 of the old statutes becomes
Section 278 of the new Code, in the following words:

“Sec. 278. Whoever shall commit the crime of rape shall
suffer death.”
ADMIRALTY, MARITIME, ETC. 433

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
without 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 West-
minster 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 wo-
man, returning from market, lay down and fall asleep by
the roadside, and a man, by force, had connection with her
whilst she was in a state of insensibility, and incapable of
giving consent, he would not be guilty of rape.”

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 ac-
cessory 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.”

§ 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 promise of marriage, or by threats, or the

28
434 ADMIRALTY, MARITIME, ETC.

exercise of authority, or solicitation, or the making of gifts or
presents, seduces and has illicit connection with any female
passenger, shall be fined not more than one thousand dol-
lars, or imprisoned not more than one year, or both; but sub-
sequent intermarriage of the parties may be pleaded in bar
of conviction.”

§ 310. Payment of Fine to Female Seduced; Evi-
dence 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 con-
viction 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
Section 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 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
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 corporation, any execu-
tive 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 transportation on water,
in the case of United States vs. Holmes, 104 Federal, 884
ADMIRALTY, MARITIME, ETC. 435

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 navigation of a vessel by one of the persons
named resulted in the loss of human life, and that the in-
dictment thereunder 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 Fed-
eral, 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 prosecute 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 statute requiring it to be equipped
with life preservers and proper fire appliances, either by sup-
plying none, or by supplying those that are unsuitable, in-
efficient, and useless, is guilty of a violation of this section,
provided such violation results in the death of a person.

§ 312. Maiming.—Old Statute 5348 becomes the sub-
stance 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 dis-
able 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
ep aeaue 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 explosives,
and reduces the maximum penalty, and is substituted 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.
436 ADMIRALTY, MARITIME, ETC.

or any store, barn, stable, or other building, parcel of a
dwelling 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 at-
tempt to destroy or injure, any arsenal, armory, magazine,
rope-walk, ship-house, warehouse, 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 re-
pair, or any light-house, or beacon, or any machinery, timber,
cables, rigging, or other materials or appliances for build-
ing, 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.”

The technical quashing of an indictment in United States
vs. Cardish, 143 Federal, 640, growing out of the necessity
of the Common Law definition of the word “arson” control-
ling 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 techni-
cal 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 in-
tent to steal or purloin, any personal property of another,
shall be punished as follows: If the property 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 contingency might be collected thereon, or
ADMIRALTY, MARITIME, ETC. 437

the value of the property the title to which is shown there-
by, or the sum which might be recovered in the absence
ees shall be deemed to be the value of the property
stolen.”

§ 317. Receiving, Etc., Stolen Goods.—Section 5357
of the old Code is broadened by new Section 288, so as to in-
clude 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 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 pur-
pose 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.—Re-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 ac-.
quired, 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 com-
mitted or omitted within the jurisdiction of the State, Terri-
tory, 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 amendment thereof by any such:
State, Territory, or District.”
438 ADMIRALTY, MARITIME, ETC.

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 re-affirmed the case of United States
vs. Paul, 6 Peters, 141, over the objection made to the con-
stitutionality of the section under discussion, resting such
objection upon the contention that the statute would author-
ize State governments to change penalties for Federal of-
fenses, and said:

“In United States vs. Paul, 6 Peters, 141, coming here on
certificate of division, it was held by this Court, speaking
by Chief Justice 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 spe-
cific laws enacted by Congress. Section 2 of the Act of July
seventh, 1898, was to the same effect, and, moreover, by ex-
press 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 delegation to the
State of authority in any way to change the criminal laws
applicable to the places over which the United States has
jurisdiction.”

In in re Kelly, 71 Federal, 545, the Court held that a ces-
sion to the general Government of certain lands for a soldiers’
home, in the Act giving the consent of the State to purchase
such land, does not confer exclusive jurisdiction, and that
upon such lands so ceded for the purpose of a home for dis-
abled soldiers, the criminal laws of the United States, which
apply only to places within their exclusive jurisdiction, are
not operative. See also United States vs. Barnaby, 51 Fed-
eral, 20.

§ 318a. Libel not Federal Offense.—The Supreme
Court of the United States in U. S. vs. Press Publishing Com-
pany, 219 U.S., 1, held that a prosecution for libel under the
foregoing section could not be had in the United States
Courts when the laws of the state of New York under which
ADMIRALTY, MARITIME, ETC. 439

the libel was circulated contained a unity act providing that
it was one criminal act to publish and circulate a libel and
since the laws of the state of New York afforded adequate
means for punishing such circulation on a United States
reservation in said State, successful prosecution could not be
had in the Federal Courts for such circulation on such res-
ervation and as a distinct and separate offense from the pub-
lication. See also Franklin vs. U. S., 216 U. S., 559.
CHAPTER XV.

PIRACY AND OTHER OFFENSES UPON THE HIGH SEAS.

§ 319.
320.
321.
322.
322a.
323.
323a.
324.
325.
326.
327.
328.
329.
330.
331.
332.

333.
334.

335.
336.
337.
338.
339.

340.

341.

Generally.

Piracy in the Code: 5368—290.

Maltreatment of Crew by Officers of Vessel: 5347—291.

Extradition for this Offense: New Code, 321.

Extradition.

Inciting Revolt of Mutiny on Ship-Board: 5359—292.

Elements of Mutiny.

Revolt and Mutiny on Ship-Board : 5360—293.

Seaman Laying Violent Hands on His Commander: 5369—294.

Abandonment of Mariners in Foreign Ports: 5363—295.

Conspiracy to Cast Away Vessel: 5364—296.

Plundering Vessel, Etc., in Distress: 5358—297.

Attacking Vessel With Intent to Plunder: 5361—298.

Breaking and Entering Vessel, Etc. : 5362—299.

Owner Destroying Vessel at Sea: 5365—300.

Other Persons Destroying or Attempting to Destroy Vessel at
Sea: 5366 and 5367—301.

Robbery on Shore by Crew of Piratical Vessel: 5371—302.

Arming Vessel to Cruise Against the Citizens of the United
States: 5284—303.

Piracy Under Color of a Foreign Commission: 5373—304.

Piracy by Subjects or Citizens of a Foreign State: 5374—305.

Running Away With or Yielding Up Vessel of Cargo: 5383—306.

Confederating, Etc., with Pirates: 5384—307.

Sale of Arms and Intoxicants Forbidden in Pacific Islands: 32
St. L., 33—308.

Offenses Under Preceding Section Deemed on High Seas: Act
February 14, 1902—309.

“Vessels of the United States’’ Defined: New Code, 310.

§ 319. Piracy is an offense against the international law,
and as such, the authorities define it to be any forcible depre-

dation

on the high seas, perpetrated in general 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, without lawful authority, and done animo furandi and
in the spirit and intention of universal hostility. It is the

440
PIRACY AND OTHER OFFENSES UPON THE HIGH SEAS 441

same offense at sea with robbery on land; and all the 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 Federal
offense. The original punishment was by death. The Act
of January fifteenth, 1897, 29 Statute at Large, 487, sub-
stituted 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 after-

wards 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 ‘‘Antelope,”’ 10 Wheat.,
66; U. S. vs. Jones, 3 Wash., C. C., 209; United States vs.
Pirates, 5 Wheat., 184; U. S. vs. Palmer, 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 statu-
tory 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 rob-
bery...... The majority of authorities on international law,
however, define it substantially as Wheaton defines it,
namely: as, ‘the offense of depredating on the high seas with-
out being authorized by any sovereign State, or with com-
missions from different sovereigns at war with each other.’”’

The reading of our statute sends us for a definition of the of-
fense to this last authority, and it may be accepted as the
correct definition.
442 PIRACY AND OTHER OFFENSES UPON THE HIGH SEAS

§ 321. Maltreatment of Crew by Officers of Vessel.—
Old Section 5347, by eliminating the word “‘American’’ be-
fore 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, im-
prisons 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 re-
peal or modify section forty-six hundred and eleven of the
Revised 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 fail-
ing 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 func-
tion 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 Revised Statutes of the United 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, with power to direct their
work and demand obedience to his orders, and while so act-
ing, beat and wounded one of the crew so under his command,
he was an officer within the meaning of the statute, and
amenable to its penalty.

Since the abolition of corporal punishment by the old Sec-
tion 4611 in the 1878 Statutes, a punishment by flogging 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 say in this
connection that this statute protects the crew of a United
PIRACY AND OTHER OFFENSES UPON THE HIGH SEAS 443

States vessel, it does not matter upon what waters she be
sailing, and where the offense denounced by the statute is
committed on board 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 Fed-
eral 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 vessel 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; de-
privation 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 in-
dictment 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 extra-
dited, clothe him with the right to exemption from trial for
any other offense until he has had opportunity to return to
the country 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; er parte Graham,
216 Federal, 813; ex parte Zentner, 188 Federal, 344; ex
parte Wizna, 188 Federal, 541; Sheriff vs. Daily, 221 U. S.,
280.
444 PIRACY AND OTHER OFFENSES UPON THE HIGH SEAS

§ 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 with-
in 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
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 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 ves-
sel; 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 jurisdiction 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 disobedience and active
resistance. In other words, the statute would not include a
case of simple passive disobedience 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 unlawful confinement of the master, even though such
confinement 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 performance of his functions as
master.
PIRACY AND OTHER OFFENSES UPON THE HIGH SEAS 445

In the case of United States vs. Crawford, 25 Federal
Cases No. 14890, it was held that the vessel must be proved
to be an American vessel, but that such proof can be made
by parol. So, also, it was ruled in United States vs. Sea-
grist, 27 Federal Case 16245, and 27 Federal 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 sec-
tion against her crew for revolt. United States vs. Rogers,
27 Federal Case No. 16189. See also United States vs. Jen-
kins, 26 Federal Case No. 15437a. For other cases illustrating
the statute, see United States vs. Sharp, 27 Federal Case
16264; 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 de-
fense 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 ac-
count of a proposed deviation in the original line of voy-
age, 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 appear
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 there-
of, 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 apprehended when first brought into the district where
the prosecution was instituted. U. S. vs. Reid et al. 210
Federal, 486. Insults, profanity, inconsiderate treatment,
and occasional violence not of an unusual character will not
warrant mutiny. U.S. vs. Reid, 210 Federal, 486.
446 PIRACY AND OTHER OFFENSES UPON THE HIGH SEAS

§ 324. Revolt and Mutiny on Ship Board.—By add-
ing the words “‘of the United States’’ after the word “‘ves-
sel,” old Section 5360 becomes new Section 293 in the fol-
lowing words:

“Sec. 293. Whoever, being of the crew of a vessel of the
United States, on the high seas, or on any other waters with-
in the admiralty and maritime jurisdiction of the United
States, unlawfully and with force, or by fraud, or intimida-
tion, usurps the command of such vessel from the master or
other lawful officer in command thereof, or deprives him of
authority 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.”

Under the authority of United States vs. Haines, 26 Fed-
eral Case No. 15275, and United States vs. Forbes, 25 Fed-
eral 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, naviga-
tion, or control of the ship. If the crew, in a mutiny, were to
displace him from the actual command of the ship, and ap-
point 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 con-
trol 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 distributed by
the language of the Section into four categories or classes:
first, simple resistance to the exercise of the captain’s author-
ity; second, the deposition of the captain from his command;
third, the transfer of the captain’s power to a third person;
and, fourth, the usurpation of the captain’s power by the ac-
cused 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, 26
Federal Case, 207; United States vs. Peterson, 27 Federal
Case, 515.

See also Sections 323 and 323a. Also U. S. vs. Reid et
al. 210 Federal, 486.
PIRACY AND OTHER OFFENSES UPON THE HIGH SEAS 447

§ 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 becomes
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 consideration
Section 310 of the new Code, which defines what the words
“vessel of the United States’ means, is practically the same
as Section 295 of the new Code, in the following words:

“Sec. 295. Whoever, being master or commander of a ves-
sel of the United States, while abroad, maliciously and with-
out justifiable cause forces any officer or mariner of such ves-
sel 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. Netcher, 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 American vessel, a Chinese laborer
is within the jurisdiction of the United States, and does not
lose, by his employment, the right of residence here pre-
viously acquired under the treaty with China. His status
as an American citizen is not changed by the fact of his em-
ployment 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, Section
296 of the new Code, in the following words:
448 PIRACY AND OTHER OFFENSES UPON THE HIGH SEAS

“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 thereafter
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, with-
in 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 mentioned,
shall be fined not more than ten thousand dollars and im-
prisoned not more than ten years.”

The constitutionality of this section has been determined
in United States vs. Cole, 5 McLean, 513; 25 Federal 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 in-
stance, any combination or conspiracy to bring about the
destruction of the vessel or any portion of its cargo, ripened
the offense of the statute.

In United States vs. Hand, 6 McLean, 274; 26 Federal
Cases No. 15296, the Court speaks of the specific intent neces-
sary 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 imprisonment,
old Section 5358 becomes new Section 297, in the following
words:

“Sec. 297. Whoever plunders, steals, or destroys any mon-
ey, 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 mari-
time jurisdiction of the United States, 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-
PIRACY AND OTHER OFFENSES UPON THE HIGH SEAS 449

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 en-
tirely immaterial whether the goods be upon the vessel 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 Con-
gress, 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 plundering
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 afforded an extra-
ordinary protection to property within the admiralty and
maritime jurisdiction of the United States, by creating and
punishing a substantive and distinct 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 character that would be piracy if committed on the
high seas, robbery or other forcible taking, theft, trespass,
malicious mischief, or any fraudulent and criminal breach of
trust, if committed on land, of property solely under the pro-
tection of Common or statutory law of the State; and that
no specific intent was necessary under the statute to con-
stitute the offense. In other words, any intent, except that
of restoring the goods to the vessel of the owner, was the un-
lawful intent comprehended under the statute; and whether
conceived at the time of the taking, or subsequently there-
to, if carried out, made the offense complete.

United States vs. Sanche was the upholding of a conspiracy
indictment under Section 5440, for a violation of 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 noted,
Section 298 of the new Code, which is a re-enactment of Sec-

29
450 PIRACY AND OTHER OFFENSES UPON THE HIGH SEAS

tion 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 merchandise 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 particular State,
such section becomes Section 299 of the new Code, in the fol-
lowing 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 in-
clude all the waters within the admiralty and maritime juris-
diction 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 other-
wise destroys any vessel, of which he is owner, in whole or in
part, with intent to prejudice any person that may under-
write any policy of insurance thereon, or 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 incorporating
PIRACY AND OTHER OFFENSES UPON THE HIGH SEAS 451

both the act and the attempt to perform the act of destruc-
tion, 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 mari-
time 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 de-
stroy the same, sets fire to any such vessel, or otherwise at-
tempts 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 com-
plete under this section if the mate destroyed the vessel,
even though he had no interest therein, and even though the
plan for its destruction 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
Federal Case, 718; U.S. vs. McAvoy, 26 Federal Case, 1044.

§ 333. Robbery on Shore by Crew of Piratical Vessel.
—Section 5371 becomes Section 302 of the new Code as fol-
lows:

“Sec. 302. Whoever, being engaged in any piratical
cruise, or enterprise, or being of the crew of any piratical
vessel, lands from such vessel, and on shore commits rob-
bery, is a pirate, and shall be imprisoned for life.”

In the construction of the general terms “piratical cruise,”
of this section, the pleader will look to the definition of piracy,
as heretofore given.

§ 334. Arming Vessel to Cruise Against the Citizens
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 concerned in furnishing, 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
452 PIRACY AND OTHER OFFENSES UPON THE HIGH SEAS

property, or whoever takes the command 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 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 offender
shall be apprehended or first brought.”

See United States vs. Howard, 3 Wash., 430; 26 Federal
Case, 390.

§ 335. Piracy Under Color of a Foreign Commission.
—Section 5373 of the old Statutes 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 authority from any per-
son, 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; United
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 for-
eign 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.”

§ 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,
PIRACY AND OTHER OFFENSES UPON THE HIGH SEAS 453

or with any goods or merchandise 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 piratical
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 fol-
lowing words:

“Sec. 307. Whoever attempts or endeavors to corrupt any
commander, master, officer, or mariner to yield up or to run
away with any vessel, or with any goods, wares, or merchan-
dise, 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 know-
ingly 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 dol-
lars and imprisoned 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 Statute
at Large, 33, becomes Section 308 of the new Code, in the
following words:

“Sec. 308. Whoever, being subject to the authority of the
United States, shall give, sell, or otherwise supply any arms,
ammunition, explosive substance, intoxicating 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 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
454 PIRACY AND OTHER OFFENSES UPON THE HIGH SEAS

imprisoned not more than three months, or both. In addi-
tion 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 pur-
poses, 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 sec-
tion last preceding, committed on any of said islands, 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 accordingly.”

§ 341. Vessels of the United States Defined.—Sec-
tion 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 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, Terri-
tory, 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 Pun-
ished: 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.

§ 342. 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 re-
lating to a like matter, such statute ceases to be controlling.
In other words, the law of the parent government is para-
mount. The legislation of Congress will supersede the legis-
lation of a state or territory, without specific provisions to
that effect, in those cases wherein the same matter is the sub-
ject of legislation by both. There the action of Congress
may well be considered as covering the entire ground.
David vs. Beason, 133 U. S., 333. Chancellor Kent in 1st
Com., page 387, says on this subject, ““Two distinct laws can-
not at the same time be exercised in relation to the same sub-
ject, effectually, and at the same time be compatible with
each other. If they correspond in every respect then the
latter is idle and inoperative. 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,

455
456 CERTAIN OFFENSES IN THE TERRITORIES

exercise concurrent powers in taxing the people of the State.
The objects of taxation may be the same, but the motives
and policy of the tax are different and the powers are dis-
tinct 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 neces-
sarily precede the action of the other; and that which is first,
being competent, 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 con-
flict with a law of the United States. There is such a con-
flict, 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. Jn re
Nelson 69 Federal, 712. The national government is supreme
and territorial governments are subordinate thereto.

There will be no confusion in the application of this doc-
trine 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 sover-
eignsand may be liableto punishment for an infraction of the
laws of either. The same act may be an offense or trans-
gression 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 of-
fenses, for each of which he is justly punishable. He could
not plead the punishment by one in bar to a conviction by
CERTAIN OFFENSES IN THE TERRITORIES 457

the other. A state may punish the offense of uttering or pass-
ing 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 Gov-
ernment enters a field even of civil legislation, it becomes
exclusive and its statutes are the paramount law. In other
words the United States is the superior sovereignty, 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 different limit was void.
Of course it will be remembered that there are some juris-
dictions into which the Federal Government cannot enter.
They belong exclusively to the State.

The offenses herein treated of are not confined to the Terri-
tories, 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 of-
fenses defined in this chapter shall be punished as herein-
after 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 in-
cludes practically all of the elements of the statute relating
to the abuse of the United States mails in the transmission
of obscene, etc., matter, and of the Interstate Commerce
Statute, which relates to the shipping or carrying of obscene
458 CERTAIN OFFENSES IN THE TERRITORIES

matter, etc. Section 312 of the new Code is in the following
language, which displaces all provisions 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 pub-
lish in any manner, or shall have in his possession for any
such purpose, any obscene book, pamphlet, paper, writ-
ing, 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 im-
moral nature or any drug or medicine, or any article what-
ever, for the prevention of conception, or for causing unlaw-
ful 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 pur-
chased 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 imprisoned 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 liv-
ing, 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 dis-
solved by a valid decree of a competent court, nor to any
person by reason of any former marriage which shall have
been pronounced void by a valid decree of acompetent 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 459

§ 346. Joinder of Counts.—Section 315, which permits
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 1n-
formation or indictment.”

§ 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 statu-
tory in this country. The Supreme Court of the United
States, in the Miles Case, 103 U. S., 311, announced the
doctrine that the proof of marriage will not be limited
to only such witnesses as were eye witnesses. Cohabi-
tation 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 kin-
dred offenses, to prove the marriage relation. In the lead-
ing case of Cannon vs. United States, 116 U. S., page 55;
29 Law Ed., 561, the Supreme Court held that a man ‘“‘co-
habits” with more than 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 Su-
preme Court held that cohabiting was a continuous offense,
and can be committed but once for the purpose of indict-
ment or prosecution, prior to the time the prosecution is in-
stituted; and a grand jury cannot divide the offense into
separate offenses, and find separate indictments; 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 Sup-
plement, 568, and is in the following words:

“Sec. 316. Whoever shall commit adultery shall be im-
prisoned not more than three years; and when the act is com-
460 CERTAIN OFFENSES IN THE TERRITORIES

mitted between a married woman and a man who is unmar-
ried, both parties to such act shall be deemed guilty of adul-
tery; and when such act is committed between a married
man and a woman who is unmarried, the man shall be deemed
guilty of adultery.”

§ 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 with-
in and not including the fourth degree of consanguinity com-
puted according 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 statute de-
mands knowing intercourse between parties related within
the fourth degree of consanguinity, such relationship 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 persons, or the most remote, is distant from the com-
mon 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 Can-
onists 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 Commentary, 206-
207; 4 Kent, 412; 2 Litt. Coke, 158. Under this statute, it is
also necessary that the indictment allege, 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 Sup-
plement, 568, reads as follows:
CERTAIN OFFENSES IN THE TERRITORIES 461

“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. Certificates 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 compe-
tent to be the subject of such marriage or ceremony 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 officer, priest, and person, by what-
ever style or designation called or known, in any way tak-
ing 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 re-
quired by this section to be stated therein in any proceed-
ing, civil or criminal, in which the matter shall be drawn in
question. But nothing in this section shall be held to pre-
vent the proof of marriages, whether lawful or unlawful, by
any evidence otherwise legally admissible for that purpose.
Whoever shall wilfully violate any provision of this section
shall be fined not more than one thousand dollars, or im-
prisoned 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 Ter-
ritories, and, therefore, it would seem that the general pro-
visions of Section 311 of this chapter are excepted by this
special provision in Section 319.

§ 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 follow-
ing language:
462 CERTAIN OFFENSES IN THE TERRITORIES

“Sec. 320. Whoever shall voluntarily engage in a pugilistic
encounter 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 anything 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 Ter-
ritories 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 “‘pugi-
listic encounters,’’ as shown in Section 321 of the new Code,
as follows:

“Sec. 321. By the term “pugilistic encounter,” as used in
the section last preceding, is meant any voluntary fight by
blows by means of fists or otherwise, whether with or with-
out 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 ad-
mission 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 tres-
pass 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. Who-
ever shall wilfully and maliciously trespass upon or enter up-
on 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, conductor, 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 commit any crime or of-
fense 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 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.
CERTAIN OFFENSES IN THE TERRITORIES 463

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.
§ 355.
355a.
356.

357.
358.
359.

359a.
360.
360a.
361.
362.
363.

364.
365.

365a.
366.

367.
368.

368a.
, 369.

370.
370a.

CHAPTER XVII.

INTERNAL REVENUE.

Raising of Revenue, Generally.

Offer of Compromise.

Trade or Business Not to Be Carried on Until Revenue Paid:
3232.

Partnerships: 3234.

Must Exhibit Stamps: 3239.

Rectifiers, Liquor Dealers, Etc., Carrying on Business Without
Paying Special Tax, Etc.: 3242—16.

Indictment.

Cc. O. D. Decisions Under Above.

Delivery to Customer.

Fact Cases.

Proof of License.

Distiller Defrauding or Attempting to Defraud United States of
Tax on Spirits: 3257.

Breaking Locks, Gaining Access, Etc.: 3268.

Signs to Be Put Up By Distillers and Dealers and Other Regula-
tions: 3279, 3280, 3281, 3296.

Concealment, Etc.

Books to Be Kept by Rectifiers and Wholesale Dealers; Penalty:
3318.

Stamps and Brands to be Effaced from Empty Cask 3324.

Re-use of Bottles, Etc., Without Removing Stamps 29 Stat. L.,
627—6.

Must be Evidence of Re-filling.

Removing Any Liquors or Wines Under Any Other Than Trade.
Names; Penalty: 3449.

Oleomargarine.

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 li-
censes to be paid before a given business could be carried on
within a State was not contrary to the Constitution, nor
against public policy. The apparent inconsistency of such a
position with the principle that the State shall have ex-
clusive control over internal commerce, or its own domestic

464
INTERNAL REVENUE 465

trade, is only apparent, and gives way to the more para-
mount principle that each Government, State and National,
has such inherent powers as belong to sovereign govern-
ments. The compliance with a Federal Internal Revenue
tax statute guarantees no rights against the State tax stat-
utes. If there be a tax both by the Federal Government and
by the State Government upon the same occupation, each
tax must be paid, and the paying of one does not authorize
the carrying on of the business with immunity from prose-
cutions by the other power. So, likewise, the punishment of
one who fails to comply with the provisions of both Govern-
ments does not preclude his punishment by the other Gov-
ernment upon the doctrine that he would be twice punished
for the same offense. One convicted under the State law for
selling whiskey without license, 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 In-
ternal Revenue, with the advice and consent of the Secre-
tary of the Treasury, and the Attorney General, to compro-
mise 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 Ap-
peals 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 prosecu-
tion would be commenced, which offer was accepted by the
defendant, and thereafter the Government instituted prose-
cution, that the trial judge should have submitted to the
jury a special charge setting forth such offer to compromise
as a binding agreement with the Government and a failure
to give such special charge was error.

The decision, instead of being based upon the defendant
having purchased immunity, is predicated upon the statute

30
466 INTERNAL REVENUE

authorizing the Government’s chief revenue officer to ef-
fect compromises and that the defendant had a right to re-
ly thereon, even though he did not follow the technical rules
prescribed for the making of such offers in compromise.

This case also inferentially speaks of the severity of a
punishment which was a hundred dollars fine and two years’
imprisonment.

§ 356. Internal Revenue Offenses.—This chapter will
not attempt to deal with all of the Federal Internal Revenue
offenses, but only such statutes as are most frequently vio-
lated, 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 fol-
lows:

“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 li-
censed; and until the tax is paid, it cannot be lawfully pur-
sued. 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 busi-
ness after an application 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 chances, sup-
ports 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, wherein the
Court held that a receipt for a license tax is not retroactive,
and cannot be admitted in evidence on the charge for sell-
ing 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
INTERNAL REVENUE 467

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, Supple-
ment, which contains the statement that the tax is due “‘on
commencing any trade or business.”

§ 357. Partnerships.—By Section 3234, it is provided
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 dis-
solution of such partnership, 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, anew 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, avoca-
tion, or employment, who is thereby made liable to a special
tax, except tobacco peddlers, shall place and keep con-
spicuously 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 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
pen # special tax is imposed by law, without the payment
thereof.”
468 INTERNAL REVENUE

§ 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 li-
quor dealer, wholesale liquor dealer in malt liquors, retail
dealer in malt liquors, or, manufacturer of stills, in the fol-
lowing language:

“Sec. 16. That any person who shall carry on the busi-
ness 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 busi-
ness of a distiller without having given bond as required by
law, or who shall engage in or carry on the business of a dis-
tiller 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 dol-
lars 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, re-
quires its use in the indictment and proof in the testimony. It
is not the making of a sale that the statute denounces, be-
cause one may carry on the business 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 person was at least prima facie evidence of criminality,
the real offense consists in carrying on such business; and
if only a single sale were proved, it might be a good defense
to show that such sale was exceptional, accidental, or made
under such circumstances as to indicate that it was not the
business of the offender.”

An indictment under this section should allege the carry-
ing on of the business, the day on which it was carried on,
the town, county, 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
INTERNAL REVENUE 469

for the Eighth Circuit, an indictment which charged directly
and succinctly that on a given day at a specified place, with-
in the jurisdiction of the trial Court, the defendant did wil-
fully, unlawfully and feloniously carry on the business of a
retail liquor dealer without having paid the special tax
therefor as required by law, was unquestionably good.

§ 360. C. O. D. Decisions.—The case in the 23 Federal,
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 quantity is segregated from
the mass; and as this takes place at the point from which the
liquor is shipped, the authorities are that the sale takes place
there, and that is, therefore, the place where the license
should be paid.

In United States vs. Chevallier, 107 Federal, 434, the Cir-
cuit Court of Appeals for the Ninth Circuit in a case where
the defendant was a wholesale liquor dealer in San Fran-
cisco, who maintained a branch house in Portland, bearing
his sign, and where, presumably, samples of his trade were
kept, and where the public were invited 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 prepay-
ing the freight, delivered the goods to a carrier at San Fran-
cisco, 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 author-
ized to make binding contracts and collect the purchase
money, and that the defendant was not subject to the in-
‘ternal revenue tax as an Oregon dealer, even though his
method of transacting business may have been devised pur-
posely to evade such tax.

In United States vs. Adams Express Company, 119 Fed-
eral, 240, an express company was charged with being a re-
tail liquor dealer on a state of facts which showed that it, asa
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
470 INTERNAL REVENUE

title to the liquors passed to the consignee on delivery to the
express company, and that the company acted as the vendee
in carrying the liquor and as agent of the vendor in collect-
ing the money, and was not, therefore a dealer. In this case,
Judge McPherson reviews the authorities known as the C. O.
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. O. D. sale at delivery point, uncon-
stitutional.

In Burk vs. Platt, 172 Federal, 777, the Court held ex-
press companies can make reasonable regulations refusing
Cc. O. D. shipments. See also Jones vs. United States, 170
Federal, page 1; U. S. vs. Lackey, 120 Federal, 57; American
Express Company vs. Iowa, 196 U. S., 133; O’Neil vs. Ver-
mont, 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 place
of business does not violate Section 3242, which is new Sec-
tion 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 de-
livery and payment were made at the boarding house, but
this legal incident of the transaction 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 board-
ing house, or place of delivery. Section 16, old Section 3242,
when read in connection with 3239 which requires a liquor
dealer 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.

§ 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 gal-
lons. 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 re-
INTERNAL” REVENUE 471

muneration for going to a neighboring State to procure 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 amuse-
ment, owning spiritous liquors, keeping them for 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 club 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 medicines,
would not be subject to the tax. A druggist, however, under
the authority of United States vs. White, 42 Federal, 138, is
to be weighed by the scales of good faith, to ascertain wheth-
er 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 Federal, 138; United States vs. Logan,
26 Federal Cases No. 15624. In Quinn vs. Diamond, 72
Federal, 993, commission merchants who made a com-
mission 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 con-
tained more alcohol than was necessary to preserve the medi-
cinal 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
472 INTERNAL REVENUE

proprietary medicines, such as Digg’s Appetizer, Lemon Gin-
ger, and tonics, see United States vs. Bray, 113 Federal,
1009; United States vs. Starnes, 37 Federal, 665; United
States vs. Stubblefield, 40 Federal, 454; United States vs.
Cota, 17 Federal, 734. In South Carolina vs. United States,
decided by the Supreme Court on December 5, 1905, it was
held that even a State must pay this Federal tax.

§ 362. Proof of License.—Under the authority of Morris
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 be-
ing a matter of defense, which, if relied upon, must be proved
by the defendant.

§ 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, Dobbin’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., 445, 29 Law Ed., 684, a judgment of
acquittal in a criminal prosecution for violation of this sec-
tion is conclusive in favor of the defendant as a claimant of
the property involved in a subsequent suit in rem under the
latter part of the statute. See also 109 Barrels of Whiskey
INTERNAL REVENUE 473

vs. United States, 94 U. S., 86; United States vs. Cushman,
1 Low., 414.

§ 364. Breaking Locks; Gaining Access to Cistern,
Etc., Penalty.—Section 3268 of the Revised Statutes reads
as follows:

“Sec. 3268. Every person who destroys, breaks, injures, 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 cis-
tern-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 Cir-
cuit Court of Appeals for the Fifth Circuit held that an ac-
quittal of a defendant for a violation of Section 3296 of the
Revised Statutes did not preclude prosecution under this
statute.

§ 365. Signs to be Put Up by Distillers and Dealers,
and Other Regulations.—Section 3279 of the old Statutes
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 crim-
inal punishment if this is not done.

In Terry vs. United States, 120 Federal, 483, the Circuit
Court of Appeals for the Fourth Circuit held that an in-
dictment for unlawfully and knowingly carrying and de-
livering raw material to a distillery was insufficient if it
failed to state that such distillery was one for the produc-
tion of spirits, and was also insufficient if it did not set forth
the kind of raw material which was furnished.

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 de-
cided under that section.

§ 365a. Concealment, Etc.—An indictment under
Section 3296 is sufficient if it charges each element of the
474 INTERNAL REVENUE

crime enumerated in the statute, and substantially in the
same language and it need not aver that the removal of the
spirits was with intent to defraud the United States. Rosen-
feld 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 provide a book, to be prepared and kept in such form as
may be prescribed 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 thereto, or in any respect alters the
same, enter in such book and in the proper columns respec-
tively 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 com-
pounded, 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 before 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 of 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 fractions of a gallon at
proof, and, if in the original packages in which they were re-
ceived, 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 aforesaid, 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 whenever any
rectifier or wholesale liquor dealer refuses or neglects to pro-
vide 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 any entry therein, or tak-
ing 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
INTERNAL REVENUE 475

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 quan-
tity 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 element, and, therefore, an in-
dictment 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 defec-
tive in failing to specify the quantity shipped. Neither need
the indictment 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 bookkeepers, and that they were
bound to:see that their duties with reference to these entries
was fully and properly performed; and if, through the neg-
lect 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 re-
quired 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 by any
officer of internal revenue wherever found. And every rail-
road company or other transportation company, or person
who receives or transports, or has in possession with in-
tent to transport, or with intent to cause or procure to be
transported, any such empty cask or package, or any part
476 . INTERNAL REVENUE

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 empty-
ing 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 there-
in, 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 afore-
said, 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 hun-
dred dollars nor more than ten thousand dollars, and im-
prisoned not less than one year nor more than five years.”

There are no words expressing intention with reference to
this offense in this section, and under the authority of United
States vs. Gallant, 177 Federal, 281, an inadvertent and
negligent omission to do the things demanded by the sec-
tion 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 pro-
vided 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 pre-
viously affixed to such bottle, or who shall, contrary to the
provisions of this Act or the regulations issued thereunder
remove or cause to be removed from any bonded warehouse
any distilled 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 wilfully remove,
change or deface any stamp, brand, label, or seal affixed to
INTERNAL REVENUE 477

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 follow-
ing points with reference to the above statute were de-
termined:

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 performed by
his bartender or agent acting within the scope of his em-

ployment.

§ 368a. Must Be Evidence of Refilling.—A convic-
tion cannot be had under Section 6 without some evidence 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 re-
moves 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
pane and be subject to pay a fine of five hundred dol-
ars.”

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. Liq-
uor 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 be-
ing 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
indictment of a corporation for a violation of this section.
See also United States vs. Sandefuhr, 145 Federal, page 849.

 
478 INTERNAL REVENUE

This statute has been held not to apply to private persons,
but only to distillers and dealers.

§ 370. Oleomargarine.—The Act of August 2, 1886, 24
Statute at Large, 209, is what is known as the Oleomargarine
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, wholesale deal-
ers of four hundred eighty dollars, and retail dealers of forty-
eight dollars. The manufacturer is any person who manu-
factures oleomargarine for sale, and also any person who
mixes with oleomargarine any artificial coloration. A whole-
sale dealer is any person who sells or offers for sale oleomar-
garine in the original manufacturer’s packages; and the re-
tailer is any person who sells oleomargarine in quantities
of less than ten pounds at one time.

Section 4 of the Act provides the penalties for the carry-
ing 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 thousand dollars; the per-
son who carries on the business of a wholesale dealer with-
out paying the special tax, besides being liable to the pay-
ment 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 oleomargarine,
and provides the penalty, and reads as follows:

“Sec. 6. That all oleomargarine shall be packed by the
manufacturer thereof in firkins, tubs, or other wooden pack-
ages not before used for that purpose, each containing not
less than ten pounds, and marked, 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 pack-
ages. 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 pre-
INTERNAL REVENUE 479

scribe. 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 de-
scribed, or who packs in any package any oleomargarine in
any manner contrary to law, or who falsely brands any pack-
age or affixes a stamp on any package denoting a less amount
of tax than that required by law, shall be fined for each of-
fense 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 constitute a delegation of
power to the Commissioner of Internal Revenue and the
Secretary of the Treasury to determine what acts shall be
criminal, but the Act itself sufficiently defines the offense,
by requiring the packages to be marked and branded, and
the punishment therefor, leaving 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 legisla-
tion was to secure revenue by internal taxation, and to pre-
vent fraud in the collection of such revenue.

In the case of Ripper 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 it-
self relevant was not inadmissible because obtained by such
illegal search and seizure; and that same case held that in or-
der 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 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 manufacturing
and selling oleomargarine; namely, the manufacturer, 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 exceeding ten pounds,
and that the restriction on retail dealers violates no Con-
480 INTERNAL REVENUE

stitutional right, and that persons 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 provided
in Section 6 does not apply to that part of the section pro-
hibiting retail dealers from selling in quantities exceeding
ten pounds, such offense being subject to punishment by
a fine of a thousand dollars, without imprisonment, as pre-
scribed 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 wilfully 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 business, or shall do any-
thing 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, marked, stamped, and branded
as prescribed; and sales by manufacturers and wholesale
dealers are also required to be ‘“‘in original stamped pack-
ages.” 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 dealers 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 conviction was
affirmed in Lockwood vs. United States, 178 Federal, 437,
INTERNAL REVENUE 481

wherein the Court re-affirmed the Constitutionality 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 Revenue, the
particular in which such packages did not conform therewith
should be set out in the indictment. The regulations of the
Commissioner provide that retail packages must have the
name and address of the dealer printed or branded thereon;
likewise, the words “‘pound” and “‘oleomargarine’’ in let-
ters 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 con-
trast to the color of the packages.

In Wesoky vs. United States, 175 Federal, 333, the Cir-
cuit 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 oleomargarine prosecu-
tion. In this case it was held, following 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 whole-
sale dealers shall keep such books and render such returns as
the Internal Revenue Commissioner may 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 requiring 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 violation of the regulation.

In United States vs. Union Supply Company, the Su-
preme Court of the United States, in an opinion rendered
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 oleo-
margarine to keep certain books and make certain returns,
and this although Section 5 of the same Act applies in ex-
press terms to corporations. In Vermont vs. United States,
174 Federal, 792, the Circuit Court of Appeals for the Eighth

31
482 INTERNAL REVENUE

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 li-
censed wholesale or retail dealers, but is comprehensive
enough to embrace all persons, whether licensed dealers or
not. This case also affirms the doctrine heretofore men-
tioned 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 pay-
ment of tax by wholesale dealers, might be prosecuted by
either information or indictment. A form of indictment 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 regu-
lation 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 Morris case, the
Circuit Court of Appeals for the Eighth Circuit, in pass-
ing upon Section 6 of the Act of 1886, and referring to the
words “every person,”’ should be construed to refer solely to
manufacturers and dealers previously therein mentioned, so
that an indictment for violating such section which fails to
charge that the accused was either a manufacturer or dealer
in oleomargarine would state no offense. The safe rule,
therefore, is to allege that the defendant is either a manu-
facturer 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.

§ 370a. Oleomargarine—Indictment.—Enders vs. U.
S., 187 Federal, 754; May vs. U. S., 199 Federal, 42; Hart vs.
U. S., 183 Federal, 368.
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.

375b. False Entries, Mistakenly Made.

376. Abstraction.

377. Misapplication.

377a. Cases of Misapplication and Indictment.
377b. Indictment Duplicitions, When.

378. False Entries.

378a. False Entries and False Reports Continued.
378b. Admission of Books.

379. Other Cases.

§ 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 organization 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 number of shares held by each.
When these dockets are filed with the Comptroller of the Cur-
rency, 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
appoint other officers; to have by-laws which are not incon-
sistent with the law for the conduct of the general business,
and the exercise of its national banking privileges. No other
bank, of course, is authorized to use the word “national”
as a portion of its title. An association may exist with or

483
484 NATIONAL BANKS

without power to use circulation. 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 denominations 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 or-
ganization and powers, etc., of national banks are from
5133 to 5156, inclusive. The sections in the Revised Stat-
utes relating to the obtaining and issuing of circulating notes
are from 5157 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 receiver-
ship are from 5220 to 5243, inclusive.

§ 37la. Federal Reserve Bank.—By the Act of Decem-
ber 23, 1913, page 260, 1914 Supp. Fed. Stats. Ann. Fed-
eral reserve banks were established in as many districts as
the Federal reserve board might consider necessary, in ac-
cordance with which the Board established eleven such
banks. This legislation contained no provisions which mod-
ify 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 amendment dealt largely with the mat-
ter of percentums of deposit 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 one 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 punish-
ment of the bank examiner who accepts any such favor, by
the same penalty.

The same section also declares that any officer, director
or employee of a member bank shall not receive any com-
NATIONAL BANKS 485

pensation or gratuity whatsoever in any way in addition to
his regular salary and that no examiners shall disclose the
names of borrowers or the collateral for loans to other than
the proper officers without first obtaining written permis-
sion from the Comptroller of the Treasury, unless ordered to
do so by competent civil jurisdiction, all of which acts are
punished by a fine not exceeding $5000 or by imprisonment
not exceeding one year, or both.

§ 3715. 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 Sec-
tion 375.

For indictments and illustrations of prosecutions under
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 aid-
ing 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 com-
pany 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 certi-
fied 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,”

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 comptroller
486 NATIONAL BANKS

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 wil-
ful certification of checks drawn upon the association by any
person or company, unless such person or company has, at:
the time such check is certified, on deposit with the associa-
tion, an amount of money equal to the amount specified in
such check; second, the resorting to any device, in order to
evade the provisions of the section; third, the receipt of any
fictitious obligation, 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 entered
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 be-
comes the debtor of the holder, Merchants’ Bank vs. The
State Bank, 10 Wallace, 647; Espy vs. Bank of Cincinnati,
18 Wallace, 619; Bank vs. Whitman, 94 U. 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 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 defendant ‘“‘did unlawfully,
knowingly, and wilfully 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
NATIONAL BANKS 487

way as to make an instrument which can properly be
called a certified check.

§ 373. Wilfully.—The use of the word ‘“‘wilfully” in the
statute implies on the part of the officer who commits the of-
fense, knowledge and purpose to do wrong. Something 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 mandates of the law. In
Potter vs. United States, cited supra, 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 im-
plies not only knowledge of the thing, but a determination,
with a bad intent, to doit. 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 “‘willfully, 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 rejecting it cannot be regarded otherwise than
as material and manifestly prejudicial.”

The original Potter case, which was treated in the writ of
error above, will be found in 56 Federal, page 93. The Su-
preme Court, in Spurr vs. United States, 174 U. S., 728, held
that the trial judge, in answering a question of the jury ina
prosecution, under this section, when they came in after
consultation, and asked for the law as to certification when no
money appeared to the credit of the drawer, which answer
failed to explain the meaning of “wilful violation,” when he
was requested so to do by the defendant’s counsel, was re-
versible error.

United States vs. Heinze, 161 Federal, 425, holds that Sec-
tion 5208 creates no criminal offense until read in connection
with Section 13 of the Act of July 12, 1882, 22 St. L., 166,
Section 13 of said Act fixing the punishment. Judge Hough,
A488 NATIONAL BANKS

in the Heinze case, said that Courts were bound to take judi-
cial 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 indictment 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 necessary to al-
lege the tenor of an instrument, unless it touches the gist of
the crime, such rule limiting, in the Federal Courts, the set-
ting out in full of the instrument mainly, if not wholly, to
the cases of forgery, counterfeiting, and sending threaten-
ing letters.

§ 374. Acting by Others.—In the Heinze case, the facts
as alleged in the indictment were that the defendant 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, therefore; he personally
could not be indicted under this section. 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 the physical in-
struments of the defendant in doing what was done; and
that an 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.”

§ 374a. 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
others, 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 conviction, even though the other was
not proved. Richardson vs. U. S., 181 Federal, 1.

§ 374b. Heinze Case.—lIn Sections 373 and 374, the
Heinze case in 161 Federal, 425, is mentioned. Indictment
NATIONAL BANKS 489

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 in-
dictment that a note for an amount was received for dis-
count 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 peo-
ple’s property and the integrity of the national banking sys-
tem, is Section 5209, which reads as follows:

“Sec. 5209. Every president, director, cashier, teller,
clerk, or agent of any association, who embezzles, abstracts,
or wilfully misapplies, any of the moneys, funds, or credits
of the association; or who, without authority from the direc-
tors, issues or puts in circulation any of the notes of the as-
sociation; or who, without such authority, issues or puts
forth any certificate of deposit, draws any order or bill of ex-
change, 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
association, with intent, in either case, to injure or defraud
the association or any other company, body politic or cor-
porate, or any individual person, or to deceive any officer of
the association, or any agent appointed to examine the af-
fairs of such association; and every person who with like in-
tent 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.”

The statute, it will be noted, punishes every president,
director, cashier, teller, clerk, or agent, who (1) embezzles,
(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 national banking at page
13, the statute covers embezzlement by the persons named, of
any of the moneys, funds, or credits of the association, pro-
vided such embezzlement be with the intent to injure or de-
fraud (1) the association, (2) any other company, body poli-
tic or corporate, or (3) any individual person. The word
“embezzle,” as used in this statute, says Terrell, has a well-
defined technical meaning. It is the unlawful conversion, by
490 NATIONAL BANKS

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 re-
spect of the moneys, goods, or properties entrusted to the
party’s possession, belonging to another, and also the wrong-
ful appropriation thereof to the party’s own use. Though
kin to theft or larceny, embezzlement is a separate and dis-
tinct offense. In order to constitute this crime, it is neces-
sary that the property, money or personal effects embezzled
should have previously come lawfully into the hands, pos-
session, or custody, of the party charged with such offense
and that while so entrusted to his possession and custody,
and held for the use and benefit of the real owner, he wrong-
fully 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 embezzlement to be
“The fraudulent appropriation of property, by a person to
whom such property has been entrusted, or into whose
hands it has lawfully come. Such custody need not be ac-
tual, manual possession. United States vs. Harper, 33 Fed-
eral, 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 de-
fined by this section, may be made by an officer or agent,
without having previously received them into his manual
possession. There is a distinction between said offense and
embezzlement. In the former it is unnecessary to charge pos-
session in the indictment, while in the latter a charge of pos-
session is required in describing 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. Prettyman vs. U. S.,
180 Federal, 30.

§ 375b. False Entries Mistakenly Made.—An en-
try made by mistake which is false is not an offense. Graves
vs. U.S., 165 U. S., ———; 41 L. ed., 732.

§ 376. Abstraction.—The president, director, cashier,
teller, clerk, or agent of any national banking association
NATIONAL BANKS 491

who abstracts any of the (1) moneys, (2) funds, or (3)
credits, of the association, with the intent to injure or de-
fraud (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. Mc-
Knight, 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 abstraction must be, of course, without its knowledge
and consent, and with the intent to injure or defraud it or
some other person or company. The Supreme Court, in
speaking of the word “abstraction” in the Northway case,
120 U.S., says:

“We do not admit the proposition that the offense of ab-
stracting the funds of the bank under this section is neces-
sarily equivalent to the offense of larceny. The offense of
larceny is not complete without the animus furandi, the in-
tent to deprive the owner of his property; but under Section
5209, an officer of the bank may be guilty of abstracting the
funds and money and credits of the bank without that partic-
ular 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 associa-
tion whose property is abstracted, but merely to deceive
some other officer of the association or an agent appointed to
examine its affairs. This intent may exist in a case of ab-
stracting, without that intent which is necessary to consti-
tute 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 defraud it, or some
other person or company, and without its knowledge 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 as-
492 NATIONAL BANKS

sociation, (2) any other company, body politic or corporate,
or (3) any individual person, or with the intent to deceive
(1) any officer of the association, 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:

“Tn order to misapply the funds of the bank, it is not neces-
sary that the officer charged should be in actual possession of
them by virtue of a trust committed to him. He may ab-
stract them from the other funds of the bank unlawfully,
and afterwards criminally misapply them; or, by virtue of his
official relation to the bank, he may have such control, direc-
tion, and power of management as to direct an application of
the funds in such a manner and under such circumstances 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 associa-
tion, by causing them to be paid out to his own use and bene-
fit in unauthorized and unlawful purchases, without the
knowledge and consent of the association, and with the in-
tent 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 enabled to
exert by virtue of his official relation. This, we think, com-
pletes the offense intended by the statute, of a wilful mis-
application 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,

§ 3775. Indictment Duplicitous, When.—Indict-
ment Duplicitous which says ‘injure and defraud,’ etc.
Since the statute uses the disjunctive “‘or’ instead of
the conjunctive “and’’ between the words injure, defraud,
deceive, it was held in the case of Norton vs. U. S., 188 Fed-
eral, 256, that an indictment which charged that the defend-
ant did the acts therein complained of with the intent to in-
jure or defraud and deceive was duplicitous and upon the
question being properly raised the indictment was quashed.
The defendant was reindicted in deference to such judgment
and the conviction was affirmed in Norton vs. U. S., 205
Federal, 593.
NATIONAL BANKS 493

In the case of U. S. vs. Corbett, 215 U. S., 233, the opinion
shows that the conjunctive was used in that indictment and
while the Supreme Court holds the indictment 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, how-
ever, that the decisions in the Norton and Billingsly cases are
correct, because manifestly one could do the acts enumer-
ated in the statute with intention to either injure or the in-
tention to defraud or with the intention to deceive and the
three words are not in any sense synonomous 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, cash-
ier, teller, clerk, or agent of any national banking associa-
tion who makes any false entry in (1) any book, (2) any re-
port, or (3) any statement, of the association, with the in-
rent, (1) to injure, (2) or defraud, (1) the association, (2)
or any company, body politic, or corporate, or (3) any in-
dividual person, or (4) with the intent to deceive (1) any
officer of the association, or (2) any agent appointed to ex-
amine the affairs of such association, 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 Re-
vised Statutes provides for the making of five reports -to the
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.

All of the offenses denounced in the statute rest for their
complete fulfillment upon the ‘‘intent”’ to either injure or de-
fraud 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 intent is an essential in-
gredient 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., 111 Federal, 735. The cases of Agnew
494 NATIONAL BANKS

vs. United States, 165 U. S., 36; United States vs. Youtsey,
91 Federal, 864; United States vs. Allis, 73 Federal, 165;
Peters vs. United 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 in-
jure 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 adopted this
view, and said:

“There could be no proper presumption that the direc-
tors, 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, there-
fore, no necessity to insert in the indictment 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-dis-
counted, is a false entry, Dorsey vs. United States, 101 Fed-
eral, 746. An entry as money deposited of a sum of money
left with the bank in a sack as a special deposit, is a false en-
try, United States vs. Peters, 87 Federal, 985. The entry on
a bank book of a transaction just as it occurred, although
such transaction be a fraud 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 direct-
ing 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 Fed-
eral, 585; 5 Federal Statutes Annotated, 150. Entries in the
book of a national bank, which correctly record actual trans-
actions of the bank, although such transactions may have
been unauthorized, or even fraudulent, are not false entries,
NATIONAL BANKS 495

and will not sustain an indictment, Twining vs. United
States, 141 Federal, 41. That the including of an account
of an accommodation note, given to cover overdrafts, in a
report made to the Comptroller was not a false entry within
the meaning 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. Coch-
ran vs. United States, 157 U. S., 293; United States vs. Bar-
tow, 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 as-
sociation, with the intent to deceive any officer of the as-
sociation, etc., whether the report was voluntarily made, or
was one required by law, if the false entry was made with the
requisite unlawful intent. This case also passes upon the
sufficiency of an indictment and its requisite averments in
the matter of setting out the report and holds that if the in-
dictment shows the date upon which the report was made,
and that it was a report made to the comptroller showing
resources and liabilities on a certain date, it is sufficient to
authorize 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 an
officer of a bank with making a false entry in a report made
by him, ‘“‘with intent to deceive an agent appointed to ex-
amine the affairs of the association, to wit, the Comptroller
of the Currency of the United States,” did not charge an of-
fense; holding that the Comptroller was not charged with
the duty to examine national banks. Without accepting
this doctrine as the law, it is suggested that in the drafting
of indictments under this portion of the statute, the allega-
tion should be made that the intent was to deceive an agent
appointed to examine the affairs of the association, to wit, a
national bank examiner.
496 NATIONAL BANKS

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 Fed-
eral, 806, District Judge Sheppard held that the intent to
deceive may be inferred from the making of the entry, and
such false entry may be made either personally, or by direc-
tion. In Morse vs. United States, 174 Federal, 539, the Cir-
cuit 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 em-
ployees 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 clerk controlled by him.

§ 378a. False Entries and False Reports Continued.
—One is guilty under this section for causing or procuring
the making of false entries. Richardson vs: U. S., 181 Fed-
eral, 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. McClarty, 191 Federal, 532.

False reports made by a clerk under the direction of 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.

§ 378). Admission of Books.—The books of the na-
tional bank in which the offense is charged to have occurred
are always admissable without proof that they were cor-
rectly 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 prosecution are sought to be
introduced there must first be the proof that they were cor-
rectly 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 misapplica-
tion, such fact being only evidence to negative the officer’s
intent to defraud at the time of the alleged offense, 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.
NATIONAL BANKS : 497

See also Brown vs. United States, a prosecution for aiding
and abetting, 142 Federal, 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 also a promoter of various enterprises,
to obtain the funds of the bank on the security of unmarket-
able bonds of his own enterprises 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 after-
wards impeach a verdict in which he joined.

In Woods vs. United States, 174 Federal, 651, the Cir-
cuit Court of Appeals for the Fifth Circuit affirmed the well-
established doctrine in a bank case applicable in all Fed-
eral 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 judg-
ment.

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 currency
or circulating medium of the country; the word “funds”
refers to Government, State, county, municipal, 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 Cir-
cuit Court of Appeals for the First Circuit approves an in-
dictment against a cashier, which charged that that officer
unlawfully ‘‘converted”’ certain moneys, funds, and credits
to the use of another. The Court said:

32
498 NATIONAL BANKS

“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 in-
tending exactly the same thing as when spoken in connec-
tion 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, must be a
wilful misapplication, for the use or benefit of the accused, or
of some person or company other than the banking associa-
tion, with intent to injure and defraud the association, or
some other body, etc.; being entirely different from facts
constituting unofficial maladministration, subjecting the
bank to a forfeiture of its charter, and an unintentional over-
draft by a depositor 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
misapplication.

In that case also, there was a count for aiding and abet-
ting, 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, evi-
dence 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 cashier 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 corporations’ property was more than three hundred
thousand dollars, while the overdrafts aggregated only thirty
thousand dollars, was admissible to show absence of criminal
intent.
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. 29. a. <A person shall be punished, by imprison-
ment for a period not to exceed five years, upon conviction of
the offense of having knowingly and fraudulently appro-
priated to his own use, embezzled, spent, or unlawfully trans-
ferred any property or secreted or destroyed any document
belonging to a bankrupt estate which came into his charge
as trustee.

*“b, A person shall be punished, by imprisonment for a
period not to exceed two years, upon conviction of the of-
fense 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 pro-
ceeding 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
attorney, or an agent, proxy, or attorney; or (4) received any
material amount of property from a bankrupt after the fil-
ing of the petition, with intent to defeat this act; or (5) ex-
torted or attempted to extort any money or property from
any person as a consideration for acting or forbearing to act
in bankruptcy proceedings.

‘ce. ‘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

499
500 BANKRUPTCY

he is directly or indirectly interested; or (2) purchased, while
a referee, directly or indirectly, an} property of the estate in
bankruptcy of which he is referee; or (3) refused, while a ref-
eree or trustee, to permit a reasonable opportunity for the
inspection of the accounts relating to the affairs of, and the
papers and records of, estates in his charge by parties in in-
terest when directed by the court so to do.

“d. A person shall not be prosecuted for any offense aris-
ing under this act unless the indictment is found or the in-
formation is filed in court within one year after the com-
mission of the offense.”

Section a of the Act relates alone and exclusively to pun-
ishment of the trustee for having knowingly and fraudulently
appropriated to his own use, embezzled, or spent, or trans-
ferred, 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 section must neces-
sarily allege an adjudication, the time and date of the ap-
pointment 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 of-
fense 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 in-
cludes not only an appropriation to the trustee’s own use,
but an unlawful transfer of the property for the use of an-
other. It is true the word ‘unlawfully’ as used with refer-
ence to the transfer 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 de-
struction 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 } of Section 29, relate to offenses com-
mitted by the bankrupt. Paragraphs 2, 3, 4, and 5 of sub-
division 5 of Section 29, create offenses that may be com-
mitted by persons who are not bankrupts. Section c of sub-
division 5 of Section 29 relates to offenses by the referee in
BANKRUPTCY 501

bankruptcy, and sub-digision d of the section creates a
particular statute of limitation for all the bankrupt offenses
described in the entire section, to wit, that the indictment
must be found, or the information filed, within one year.

§ 382. Decisions.—An indictment in the terms of the
section, which charges the knowing and fraudulent conceal-
ment, 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 bank-
rupt, at the time of the concealing of his property, knew
either the fact that a trustee had been appointed for his es-
tate, or the name of such trustee, United States vs. Com-
stock, 161 Federal, 644.

The word ‘“‘conceal’’ as used in the section, is of plain im-
port, and when coupled in an indictment with the words
“unlawful, knowingly, and fraudulently,” clearly excludes un-
intentional acts, United States vs. Comstock, 161 Fed-
eral, 644. The offense of concealing property, by a bank-
rupt, from 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 trustee in
bankruptcy, an averment that the trustee was “duly” ap-
pointed trustee is sufficient; the matter of appointment be-
ing 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 presi-
dent of a bankrupt corporation, for making a false oath to its
schedules, which showed that the defendant, as its presi-
dent, in compliance with the bankrupt law, did file in the
bankruptcy proceedings, with the referee, the schedules re-
quired by law, subscribed and sworn to by him, as presi-
dent; that the defendant stated on his oath that such sched-
ules contained a true and complete statement of all the cor-
poration’s property; and that the statement that the bank-
502 BANKRUPTCY

rupt corporation had then on hand only the sum of a hun-
dred 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 concealment
was continued after the bankruptcy, and after the appoint-
ment 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 chat-
tel 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 conspiracy was formed and the property removed
and concealed, 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 fraudulently and knowingly concealed
the property of the estate of the corporation in bankruptcy
from its trustee. The present or past bankruptcy of the ac-
cused is an indispensable element of the offense denounced
by the statute. A penal statute which creates and denounces
a new offense, 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 excluded from
its effect by its terms, for the reason that 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 Federal,
499, where it was held that paragraph 0b of the Act, pro-
BANKRUPTCY 503

viding that a person shall be punished on conviction for hav-
ing knowingly and fraudulently concealed, while a bank-
rupt, or after his discharge, from his trustees, any of the prop-
erty belonging to his estate in bankruptcy, must be strictly
construed, and does not include officers of a corporation de-
clared a bankrupt. A bankrupt corporation may commit the
criminal offense of knowingly and fraudulently concealing
its property from its trustee, defined and made punishable
by the Act, and individuals who conspire to cause a corpora-
tion to commit 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 banking corporation cannot be in-
dicted for concealing the property of the bankrupt from the
trustees, because he, the officer, is not the bankrupt.

Second, The bankrupt corporation may be indicted for
concealing this property from the trustee.

Third, Individuals who conspire to conceal the property
of a bankrupt corporation may be indicted for an offense un-
der 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 Circuit, permits
the trustee in bankruptcy to testify that he had never learned
from the bankrupt that there was property 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 assist-
ance of the bankrupt, even though such testimony was ob-
jected to on the ground that it was an attempt to disclose the
bankrupt’s testimony before the referee. The decision dis-
tinguishes the cases of Jacobs vs. United States, 161 Fed-
eral, 694, and Johnson vs. United States, 163 Federal,
page 30, which two cases those respective Courts held to be
indirect methods of introducing the bankrupt’s schedule of
assets and liabilities against him in criminal cases; the John-
son and Jacobs cases holding that this cannot be done, of
course, directly or indirectly.
504 BANKRUPTCY

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 evi-
dence, 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 bankruptcy court.

In Wechsler vs. United States, 158 Federal, 579, the Cir-
cuit Court of Appeals for the Second Circuit held that Sec-
tion 7 of the Bankrupt Act, which requires the bankrupt to
submit to an examination under oath as to various matters
specified, with the proviso that ‘‘no testimony given by him
shall be offered in evidence against him in any criminal pro-
ceeding,”’ does not give immunity from prosecution for giv-
ing false testimony upon any such examination. That case
further holds that if there be false testimony upon such ex-
amination, 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 Dillon, 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 Cir-
cuit Court of Appeals for the Fifth Circuit reversed a judg-
ment of conviction and dismissed the indictment and dis-
charged the defendant under an indictment which charged
a conspiracy under old Section 5440, to conceal property
from the trustee, where the indictment alleged that the con-
spirators 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 dis-
charged the trustee, holding that the trustee could not con-
spire to conceal from himself. A consideration of this
opinion is advised, together with the reasoning in Cohen vs.
United States, 157 Federal, 651, where the Court of Ap-
peals for the Second Circuit held that in a conspiracy prose-
cution, it was immaterial that the corporation is not, or can-
not be, indicted as one of the conspirators; also with the case
BANKRUPTCY 505

of 3 Howells’ State Trials, 402, where a husband was con-
victed .for conspiring to rape his own wife, even though he
himself could not commit such rape.

§ 382a. Decisions Continued.—Perjury may be as-
signed 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. Phlilips, 196 Fed-
eral, 574; also upon the question of limitation see Warren
vs. U. S., 199 Federal, 753. Bankrupt is entitled to the pre-
sumption of innocence upon charge of concealment. Chad-
kowski vs. U. S., 194 Federal, 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 charg-
ing 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 conspirators, Roukous vs.
U. S., 195 Federal, 353. One who is not a bankrupt may con-
spire to conceal, provided there is included in the con-
spiracy the bankrupt. Kaufman vs. U. S., 212 Federal, 613.
Perjury cannot be assigned on an examination of the bank-
rupt where such examination was ex parte and when there was
no issue. U. S. vs. Rhodes, 212 Federal, 518. The con-
stitutional provision that no man shall be compelled to be a
witness against himself is applicable to bankrupt and en-
titles 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 U. S., 274, where it was held that the right
under the Fifth Amendment not to be compelled to be a
witness against one’s self is not a right to appropriate prop-
erty that may tell one’s story and that a bankrupt is not de-
prived of his constitutional right not to testify against him-
self by an order requiring him to surrender his books to the
duly authorized receiver. The decision distinguishes the
506 BANKRUPTCY

case of Counselman 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. Nemcof vs.
U. S., 202 Federal, 911; U. S. vs. Rhodes, 212 Federal, 513.

§ 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 property
shown clearly to be in his possession, or go to jail for con-
tempt, has arisen what may be termed another criminal fea-
ture 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 District Judge
Meek, of the bankrupt for failure to pay over certain funds
shown to be in the possession of the bankrupt, was affirmed
by the Circuit Court of Appeals for the Fifth Circuit. In
that opinion, the Court says:

“Tf 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 cites a number of similar
decisions, and holds:

“The courts have been very careful not to permit contempt
proceedings to be converted into a means of coercing pay-
ment of debts from funds other than assets wrongfully with-
held by the bankrupt, and for this reason, have required the
clearest evidence that the bankrupt had the assets in his pos-
session, 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 bankrupt should
not be committed for contempt for a failure to comply with
an order requiring him to turn over money to his trustee, al-
leged to have been 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.

§ 384. The Act of June 30, 1906, 34 Stat. L., 768, is
what is known as the Pure Food Act. This statute contains
thirteen sections, the first two of which create criminal of-
fenses. The third provides for rules and regulations 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 drugs and food. The seventh defines adul-
terations, 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 possessions, and de-
fines “‘person.”

§ 385. Criminal Sections.—The first two sections are,
therefore, of interest to us here. The first section provides
that it shall be unlawful for any person to manufacture,
within any Territory, or the District of Columbia, any article
of food, or drugs, which is adulterated or misbranded, with-
in the meaning of the Act, and fixes a penalty of a fine not to
exceed five hundred dollars, or one year’s imprisonment, or
both such fine and imprisonment. The second section is

507
508 FOOD AND DRUGS

more comprehensive, because it applies to all interstate
commerce, and reads as follows:

“Sec. 2. That the introduction into any State or Terri-
tory or the District of Columbia from any other State or
Territory, or the District 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 coun-
try; 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 unbroken 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 offer for 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 exceed-
ing 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 said article from the opera-
tion 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 shipments
under this statute relates to all persons. U. S. vs. Lewis,
U.S. Supreme Court, Oct. Term, 1914.

§ 3855. Criminal Practice Under.—It is not a prece-
dent to prosecution that a hearing be had by the Depart-
ment of Agriculture. U.S. vs. Morgan, 222 U.S., 274. The
Secretary of Agriculture, after an investigation of an alleged
FOOD AND DRUGS 509

violation, should certify to the District Attorney 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 conform
as near as may be to proceedings in admiralty, such pro-
ceeding does not include appellate proceedings, since the ac-
tion of the District Court on a libel can only be reviewed as
at common-law by writ of error and not by appeal. Four
Hundred, etc., vs. U. S., 226 U. S., 173, reversing 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 Fed-
eral, 566. The prosecution may be by information for the
first offense. U.S. vs. Wells, 186 Federal, 248.

Since the crime denounced by the 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 introduction. U. S. vs.
Hopkins, 199 Federal, 649, and a corporation cannot compel
the Government to bring its action in the district in which
the corporation is a resident. U.S. vs. Hopkins, 199 Fed-
eral, 649. The preliminary examination provided for in the
law is not necessary before criminal prosecution, nor is it
necessary to allege in the indictment that there was a pre-
liminary 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 containing the name
“Gold Leaf Syrup,” with a trade-mark consisting of a gold
leaf in the form of a 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
510 FOOD AND DRUGS

be done; but the purpose of the statute was to rid the streams
of commerce of deleterious and poisonous food and drugs.
That is the spirit of the statute, the evil that prompted its
passage; and a construction of the statute 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 manufactured
a food product, shipped by its manager in interstate com-
merce, and which was adulterated or misbranded, are sub-
ject to prosecution under the Act, where they employed
the manager and authorized him to operate 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 thereunder for
shipping in interstate commerce any adulterated or mis-
branded 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 available to a dealer
only when such guaranty relates to the identical article
shipped by him, and affords no defense to him where it re-
lates 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 mo-
lasses, 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 commercial glucose, is not adulter-
ated 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, labeled
‘Compound; pure comb and strained honey and corn syrup,”
is not misbranded, within the meaning of this Act, merely
FOOD AND DRUGS 511

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 construed 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 bot-
tles and the boxes contained blended maple syrup. That
case continues to hold that the Act provides that an article
which does not contain any added poisonous or deleterious
ingredients, shall not be deemed to be adulterated or mis-
branded, if labeled so as to plainly indicate that it is a com-
pound 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 harmless
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 in-
sufficient, it being essential that the label shall set forth the
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 containing 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 brand-
ed 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 com-
mission 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.

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:
512 FOOD AND DRUGS

“It is questionable whether Congress can affect a State
inspection law, simply by legislation covering the same sub-
ject—whether, in order to do so, it must not enact legisla-
tion under Clause 2, Section 10, Article I., of the Federal
Constitution, expressly revising and controlling same; but,
this apart, the two laws do not cover the same territory.
The Federal law merely covers the subject of adulteration
and misbranding. The State law has nothing to do with
either. It has to do with the subject of disclosing the in-
gredients of the articles covered by it. Its policy is to com-
pel 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 Federal, 313, Judge Phillips
held that a medicinal preparation cannot be said to be mis-
branded and its sale or shipment in interstate commerce a
criminal offense under this act merely because of a misrep-
resentation on the label as to its curative effect. This case

was carried to the Supreme Court by the United States un-
der 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 injurious to health before its
shipment in interstate commerce 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, 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 purposes
cannot be shipped in interstate commerce from one ware-
FOOD AND DRUGS 513

house of the owner to another without violating this law,
even though it be contended that the owner intended 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, decom-
posed or putrid, and therefore adulterated within the mean-
ing 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 indicating
its presence, the seller knowing when he solicited the order
that the transaction, if completed, would necessitate in-
terstate 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.

§ 386. 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 composition of food, the package or label of which
shall bear any statement, design or device regarding such
article, or the ingredients or substances 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 purposes 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 been removed, in whole or in part, and other
contents 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 propor-
tion of any such substance contained therein. Third. If
its package or label shall bear or contain any statement, de-
514 FOOD AND DRUGS

sign or device regarding the curative or therapeutic effect
of such article or any of the ingredients or substances con-
tained 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 mis-
branding.

On March 3, 1913, the Congress added another Amend-
ment to the Act of 1906 by changing the original third sec-
tion thereof to read as follows:

“Sec. 3. If in package form the quantity of the con-
tents, be not plainly and conspicuously marked on the out-
side of the package in terms of weight, measure or numerical
count; provided, however, that reasonable variations shall
be permitted and tolerances and also exemptions as to small
packages shall be established by rules and regulations 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, nineteen 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 deriva-
tives 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 subject to the duties which are now or may hereafter be
imposed by law.

“Sec. 2. That if any person shall fraudulently or know-
ingly 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, concealment, or
sale of such opium or preparation or derivative thereof after
FOOD AND DRUGS 515

importation, knowing the same to have been imported con-
trary to law, such opium or preparation or derivative there-
of shall be forfeited, and shalt be destroyed, and the offender
shall be fined in any sum not exceeding five thousand dol-
lars 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 de-
fendant shall explain the possession to the satisfaction of the

jury.”

§ 387a. Additional Opium Statutes.—The Act of
January 17, 1914, provided that “On or after July 1, 1913,
smoking opium or opium prepared for smoking, found with-
in the United States shall be presumed to have been im-
ported after the 1st day of April, 1909, and the burden of
proof shall be on the claimant or the accused to rebut such
presumption.” Sections 8800-8801f, U. S. Compiled Stat-
utes.

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 required by the Commissioner of
Internal Revenue. Every person who prepares opium suit-
able 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 re-
garded as a manufacturer 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 Section 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 the preceding sec-
tions of this Act, relating to opium by any person or per-
sons; and all opium prepared for smoking wherever found
516 FOOD AND DRUGS

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 Fed-
eral, 88, had held that the mere mixing of smoking opium
with the residue of opium that has been smoked, and heat-
ing the same, was not a manufacture of opium for smoking
purposes, within the meaning of the internal revenue Act
of 1890 which imposed a tax on smoking opium and regulated
the business of its manufacture. It would appear that Con-
gress answered this decision by providing the Act just above
quoted wherein it is said that the preparation of opium suit-
able 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 manu-
facture 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 con-
verted into a product fit for smoking constitutes a manufac-
ture of smoking opium, but the limiting of the Marks de-
cision by the Shelly decision made the new opium Act
most understandable and any mixture whatsoever of opium
which may be smoked will now be considered a manufac-
ture thereof.

Under the old law the offense of illegal importation was
committed whenever the smoking opium was fraudulently
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.

§ 3875. 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 consti-
tutional 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 connection between the facts proved
and the facts therefrom inferred, and provided the party
affected is free to oppose them,
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 immigration. It
prohibits the importing of women for prostitution, the im-
porting 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 fre-
quently 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 immoral purpose, is hereby forbidden; and who-
ever shall, directly or indirectly, import, or attempt to im-
port, 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 importa-
tion, or whoever shall keep, maintain, control, support, or
harbor in any house or other place, for the purpose of prosti-
tution, 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 imprisoned 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

517
518 IMMORAL USE OF FEMALES

States, and shall be deported as provided by sections twen-
ty and twenty-one of this Act.”

§ 389. Decisions.—Judge Hough, in United States vs.
Bitty, 155 Federal, 938, held that the words “‘any other im-
moral purpose,” as used in the above section must be con-
strued with reference to the preceding word “‘prostitution,”
and to relate only to a like immoral purpose, and, so con-
strued, cannot be held to include concubinage; and he, there-
fore, sustained a demurrer to the indictment. The Govern-
ment had gone, 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 importa-
tion 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 United States to im-
port alien women for the purpose of prostitution, or for any
other immoral purpose.

In Keller vs. United States, 213 U. S., 138, the Supreme
Court held that that portion of the above section which
makes it a felony to harbor alien prostitutes was unconsti-
tutional, as to one harboring such a prostitute without knowl-
edge 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 por-
tion, 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 pro-
vides for the criminal punishment of the mere keeping,
maintaining, supporting, or harboring an alien woman within
three years after entry for the purposes of prostitution, it is
unconstitutional, such offense being within the police power
of the State, and not subject 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
IMMORAL USE OF FEMALES 519

the holding 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 im-
porting of a female for immoral purposes was within the dis-
trict 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, thata warrant by an immigration inspector under the
Act, which authorizes the inspectors to proceed without go-
ing before any other United States Courts or United States
Commissioner, 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 excluded 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 con-
clusions. 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 insuffi-
cient to justify his deportation as an alien having been con-
victed 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 statute. 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 immoral purpose, was not sufficiently specific.

§ 389a. Additional Decisions Under Act of February
20, 1907.—All that portion of Section 3 of the Act of Feb-
ruary 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 other im-
moral 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
520 IMMORAL USE OF FEMALES

thereof be imprisoned not more than five years and pay a
fine of not more than $5,000,” is declared to be unconstitu-
tional 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 Con-
stitution.

The Act of March 26, 1910, 36th Statute 264, reads as
follows: ‘‘Any alien who shall be found an inmate of or con-
nected with the management of a house of prostitution, 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 deported in the man-
ner provided by Sections 20 and 21 of this Act,” thereby do-
ing away with the three year limitation of time provided for
in the last paragraph of the 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 Fed-
eral, 894; U. S. vs. Weis, 181 Federal, 860.

Under the authority of United States vs. Lavoie, 182 Fed-
eral, 943, which was a prosecution under the first part of
Section 3 for importing for the purpose of prostitution an
alien woman, a space of time elapsing after importation of as
much as two years, and then the resumption of illegal rela-
tions, such illegal relations will not be held to be pursuant
to the illegal importation. Prosecution for illegal importa-
tion under this section should be had in the district of the
port where the alien was landed. U. S. vs. Krsteff, 185
Federal, 201; U. S. vs. Lavoie, 182 Federal, 943.

§ 390. Importing Contract Labor.—Section 4 of the
-Act reads as follows:
“That it shall be a misdemeanor for any person, company,

partnership, or corporation, in any manner whatsoever, to
prepay the transportation or in any way to assist or encour-
IMMORAL USE OF FEMALES 521

age the importation or migration of any contract laborer or
contract laborers into the United States, unless such con-
tract 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 define
and punish pandering, reads as follows:

_“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 prosti-
tution 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 per-
son, or if any parent, guardian, or other person having legal
custody 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 pun-
ished by imprisonment for a term of not less than one nor
ee than five years and fined not more than one thousand

ollars.

“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 com-
pel 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 prostitution, 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 valuable 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 con-
viction thereof shall be imprisoned for not less than one nor
more than five years.

“Sec. 4. That any person who by force, fraud, intimida-
tion, or threats places or leaves, or procures any other per-
son or persons to place or leave, his wife in a house of prosti-
tution, 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.
522 IMMORAL USE OF FEMALES

“Sec. 5. That any person or persons who attempt to de-
tain 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 defined by the Century Dictionary to mean
to cater for the lusts of others; to administer to others’ pas-
sions or prejudices for selfish ends; to pimp for; one who ad-
ministers to the gratification of any of the baser passions of
others. It is sometimes written pandar, formerly pandor,
and was doubtless taken from 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 im-
moral purposes of women and girls, and for other purposes,
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
the District of Columbia, and the term ‘foreign commerce,’
as. used in this Act, shall include transportation from any
State or Territory or the District of Columbia to any foreign
country and from any foreign country to any State or Terri-
tory 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 trans-
portation for, or in transporting, in interstate or foreign com-
merce, or in any Territory or in the District of Columbia, any
woman or girl for the purpose of prostitution or debauchery,

r for any other immoral purpose, or with the intent and pur-
pose to induce, entice, or compel such woman or girl to be-
come a prostitute or to give herself up to debauchery, or to
engage in any other immoral practice; or who shall knowingly
procure 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 transportation or evidence of the right thereto,
to be used by any woman or girl in interstate or foreign com-
merce, or in any Territory or the District of Columbia, in
going to any place for the purpose of prostitution or de-
bauchery, or for any other immoral purpose, or with the in-
tent or purpose on the part of such person to induce, entice, or
IMMORAL USE OF FEMALES 523

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 trans-
ported in interstate or foreign commerce, or in any Terri-
tory 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 imprison-
ment 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 coerced, 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 Terri-
tory or the District of Columbia, for the purpose of prostitu-
tion or debauchery, or for any other immoral purpose, or with
the intent and purpose on the part of such person that 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 carriers in interstate or
foreign commerce, or any Territory or the District of Colum-
bia, shall be deemed guilty of a felony, and on conviction
thereof shall be punished by a fine of not more than five
thousand dollars, or by imprisonment for a term not exceed-
ing 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 induced 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
conviction 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 imprison-
ment, 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 carried or trans-
ported as a passenger in interstate or foreign commerce, or
524 IMMORAL USE OF FEMALES

in any Territory or the District of Columbia, contrary to the
provisions 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; Ben-
nett vs. U. S., 194 Federal, 630; affirmed in Bennett vs. U. S.,
227 U. S., 333. The right to be transported in interstate
commerce is not a right to employ interstate 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 tranportation inhibited by the Act is not
confined to transportation by common carrier, nor need such
a limitation be employed in order to sustain the constitu-
tionality of the Act. 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 orimmorality 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 may
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 constitutional privilege not to
testify, and thereby the prosecution 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 un-
less 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 oc-
IMMORAL USE OF FEMALES 525

curred 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 there-
by protect himself against her testimony, because the of-
fense against her person occurred when she was not his wife,
and having become his wife, she is prevented from disclos-
ing anything to his detriment, 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 committed 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 during the marital relation. Against this reason-
ing, 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 can-
not 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. S. vs.
Flaspoller, 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 penitentiary 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. S., 213 Federal, 913; Welsch vs. U. S., 220 Federal, 764.

§ 392b. Harboring Prostitutes and Making Re-
ports Thereof.—The. statement required by the Act of
June 25, 1910, to be made to the Commissioner General of
Immigration, 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 coun-
tries who are parties to the arrangement to file such state-
ment, and an indictment which failed to show that a female
so harbored is from one of such countries is fatally defec-
526 IMMORAL USE OF FEMALES

tive. 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 procuring 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.
§ 393.
394.

395,
396.
397.
398.
399.

399a.

400.
401.

402.

402a.

403.
404.
405.

405a.

406.
407.

A07a.

408.
409.

CHAPTER XXII.

SOME GENERAL AND ACCEPTED PROVISIONS.

Punishment of Death by Hanging.

No Conviction to Work Corruption of Blood or Forfeiture of
Estate.

Whipping and the Pillory Abolished.

Jurisdiction of State Courts.

Illustrations.

Other Decisions.

Pardoning Power.

Pardon, Acceptance of and President’s Power.

Qualified Verdicts in Certain Cases.

Body of Executed Offender May be Delivered to Surgeon for
Dissection.

Who Are Principals.

Aiding and Abetting.

Punishment of Accessories.

Felonies and Misdemeanors.

Omission of Words, “Hard Labor” Not to Deprive Court of
Power to Impose.

Imprisonment, and Where.

Repealing Provisions.

Parole of United States Prisoners.

For Construction of Parole Act.

Witnesses for Poor Accused.

Publicity of Contributions.

§ 393. Punishment of Death by Hanging.—Section
323 of the new Code, is in the exact words of old Statute

5325,

to wit:

“Sec. 323. The manner of inflicting the punishment of

death

shall be by hanging.”

§ 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 follows:

“Sec. 324. No conviction or judgment shall work cor-
ruption of blood or any forfeiture of estate.”

In England, felony comprises every species of crime which
at Common-Law worked a forfeiture of goods and lands.

527
528 SOME GENERAL AND ACCEPTED PROVISIONS

§ 395. Whipping and the Pillory Abolished.—Sec-
tion 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 impair 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 provisions.

Decisions.—The efforts of the Courts to maintain the
sovereignty of the Federal and State Governments without
impingement from either side have been both commendable
and successful. It is true that at times the line has been diffi-
cult to trace, and conflict seemed imminent, but careful reas-
oning and a thorough determination to preserve the auton-
nomy and virgin jurisdiction of each Government have us-
ually 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 be-
came necessary for the preservation of the State lines to dis-
tinguish in re Loney, 134 U. S., 372, and the Court did so by
announcing 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 author-
ity, and the State Court secures jurisdiction of the person,
that person must exhaust all State remedies before appeal-
ing to the Federal Courts for relief. If, however, as in the
Loney case, immediate action is urgent, not to the interests
of the person, but to the interests of the general Government,
then and in that event the Courts of the general Govern-
SOME GENERAL AND ACCEPTED PROVISIONS 529

ment will interfere before all State remedies have been ex-
hausted. So, too, if Congress has taken exclusive jurisdic-
tion of an offense interference by similar prosecutions in the
State Courts are not permitted.

§ 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 promis-
sory note and entered it upon the books of the 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 making such false entries is one
against the United States, of which its Courts have ex-
clusive cognizance. In other words, the crime of forgery
against the State could not be excused or obliterated by com-
mitting another and distinct crime against the United
States; and the act, or series of acts, constituting an of-
fense equally against the United States and the State, sub-
jects 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 dis-
charged, upon habeas corpus, applicant Loney from im-
prisonment under a warrant of arrest from a justice of the
peace of Virginia, upon a complaint charging him with per-
jury 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 con-
tested election of a member of the House of Representatives
of the United States, performs this function under the au-
thority 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 account-
able for the truth of his testimony to the United States
only, and the power to punish such witness belongs exclu-
sively to the Government in whose tribunals that proceed-
ing 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

&
530 SOME GENERAL AND ACCEPTED PROVISIONS

of Fitzgerald vs. Green, the Supreme Court reversed the de-
cision of the Circuit Court of the United States, discharging
upon habeas corpus Green from imprisonment under a judg-
ment of the Court of Virginia, imposed upon him for unlaw-
fully voting for presidential electors, and held, in substance,
that the State has the power to punish for illegal and fraudu-
lent voting for presidential electors, because Congress has
never undertaken to interfere with the manner of appoint-
ing 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
matters 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 peti-
tion, pursued by a State in the selection of its presidential
electors; and after so maintaining 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 be-
ing 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 oleomargarine in violation of the
State law, to disabled soldiers under his charge at the said
SOME GENERAL AND ACCEPTED PROVISIONS 531

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 to the land upon which the
home is situated by the State Legislature, is not subject to the
State Law concerning the use of oleomargarine when he fur-
nishes that article to the inmates of the home, as a part of
the rations furnished for them under appropriations made by
Congress therefor.

In United States vs. Eno, 155 U. S., page 89, 39 Law Ed.,
page 80, arose upon a writ of 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 in-
dictment against him in a State Court of New York for cer-
tain offenses over which the State Courts had no jurisdic-
tion; such offenses being the making 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 ap-
pealed to the Supreme Court, which Court reversed the judg-
ment of the Circuit Court of the United States, and held, in
substance, 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 foregery by making false entries in the
books of the bank, with intent to defraud, where he is not in-
dicted 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 certain cases as constituting exceptions to
the general rule—among which are cases of urgency, involv-
ing the authority and operations of the general government.
Loney’s case was of that class. It appeared fromthe rec-
ord that he was duly summoned to give his deposition in a
contested election case, pending in the House of Representa-
tives of the Congress of the United States—a summons he
532 SOME GENERAL AND ACCEPTED PROVISIONS

was obliged to obey, unless prevented by sickness or un-
avoidable accident, under the penalty of forfeiting a named
sum to the party at whose instance he was summoned, and
of becoming subject to fine and imprisonment, that he ap-
peared before a notary public in obedience to such summons,
and proceeded to give is deposition; and that while in the
office of an attorney, for the purpose of completing his testi-
mony, he was arrested under a warrant issued by a justice of
the peace based upon the affidavit of one of the parties in the
contested election case, charging him with wilful perjury,
committed in his deposition...... It is clear from this state-
ment that that case was one of urgency, involving, in a sub-
stantial 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 ofttimes
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 offenses cognizable under the
authority of the laws of the United States; all suits for penal-
ties and forfeitures incurred under the laws of the United
States; all civil cases of admiralty and maritime jurisdic-
tion; 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 pro-
ceedings 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.

§ 398. Other Decisions.—In United States vs. Lackey,
99 Federal, 952, which was a case arising upon prosecution
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 en-
forcement, were intended in any primary sense, to protect any
right or interest of the United States, and the fact that the
SOME GENERAL AND ACCEPTED PROVISIONS 533

national Government 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 Amend-
ment were civil rights under the State.

In in re Welch, 57 Federal, 576, Circuit Judge Lacombe
held that the question as to whether the State Court has juris-
diction over a pilot indicted for manslaughter, 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 adverse, 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 ob-
structed 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 juris-
diction, where it does not appear that he was arrested for
any act done in pursuance of 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 prose-
cution for that offense in the State Courts, and holds, of
534 SOME GENERAL AND ACCEPTED PROVISIONS

course, that the State Courts have power to punish counter-
feiting 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 fol-
lows:

‘Sec. 327. Whenever, by the judgment of any court or
judicial officer of the United States, in any criminal proceed-
ing, 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 man-
ner, 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 of-
fender from all of the disabilities imposed by the offense, 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 instructions to report thereon,
and obtain, if possible, the views of the trial Judge. Both
trial Judges and District Attorneys are requested by the De-
partment of Justice not to make recommendations or give
letters for commutation 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 be ac-
cepted. Burdick vs. U. S., 235 U. S., . Overruling
U. S. vs. Burdick, 211 Federal, 493. The President’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 constitutional right of the President to
pardon as to him may seem proper. Thompson vs. Duehay,
217 Federal, 484.

 
SOME GENERAL AND ACCEPTED PROVISIONS 535

§ 400. Qualified Verdicts in Certain Cases.—Sec-
tion 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 convicted 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 judgment of death, that the body of the offender
be delivered to a surgeon for dissection; and the marhsal who
executes such judgment shall deliver the body, after execu-
tion, to such surgeon as the court may direct; and such
surgeon, or some personappointed by him, shall receive and
take away the body at the time of execution.”’

§ 402. Who Are Principals.—Sections 5323 and 5427
become 332 of the new Code, in the following words:

“Sec. 332. Whoever directly commits any act constitut-
ing an offense 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
into the Indian Territory, and in another count with
being a principal in the commission of the same crime, and
it appeared that accused ordered and directed his co-de-
fendant to procure and bring in the liquor, acquittal of the
latter was no objection to a conviction of accused. 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 de-
536 SOME GENERAL AND ACCEPTED PROVISIONS

gree, and if in the second degree may be arraigned and tried
before the principal in the first degree, and may be convicted,
though the party charged as the principal in the first degree
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 bankrupt corpora-
tion, of which he was president and general manager, to con-
ceal its assets from its trustee, that the corporation should be
first convicted before the conviction of accused. Kaufman
vs. U.S., 202 Federal, 614.

§ 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 pro-
vided by law, being an accessory after the fact to the com-
mission of any offense defined 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 principal 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.

§ 404. Felonies and Misdemeanors.—Section 335
of the new Code is one of the most important and most prac-
tical of the entire Act, because it settles for all time the much
mooted question often raised upon challenges and elsewhere
as to when a given offense is a misdemeanor 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 mis-
demeanors.”’

§ 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. 338. 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 impose hard labor as a part of the
punishment, in any case where such power now exists.”
SOME GENERAL AND ACCEPTED PROVISIONS 537

§ 405a. Imprisonment, and Where.—Where the sen-
tence is for one year only the Court is without authority to
prescribe labor as a term of the sentence or to order his con-
finement in a Government penitentiary. Mitchell vs. U. °
S., 196 Federal, 874. Sections 5541 and 5542 of the Re-
vised Statutes authorize confinement in a penitentiary when
the sentence is for a period longer than one year, or to im-
prisonment and confinement at hard labor. Baird vs. U.
S., 196 Federal, 778; Thompson vs. Duehay, 217 Federal,
484.

§ 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 af-
fected, and announcing that prosecutions and acts of limita-
tions are not affected.

§ 407. Parole of United States Prisoners.—The Act of
Congress dated June 25, 1910, provides that the Superin-
tendent of Prisons of the Department of Justice and the
warden and physician of each United States Penitentiary,
shall constitute a board of parole of such prison, and pro-
vides, 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 er 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 certificates 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
538 SOME GENERAL AND ACCEPTED PROVISIONS

States influence the result, or attempt to influence the re-
sult, of an election at which representatives in Congress
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 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

pes dollars or imprisoned not more than one year, or
oth.”
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.

Collection of Duties.—To make the collection of duties
more certain Congress has provided a few criminal stat-
utes 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 en-
try was made, by the person making entry, such article shall
be forfeited, and the person in whose baggage 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 personal effects,
each complete in itself, such section reading as follows:

“Sec. 2799. In order to ascertain what articles ought to
be exempted as to wearing apparel, and other personal bag-
gage, 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 account of

539
540 SMUGGLING

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 pack-
ages contain no merchandise 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 imported
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 ap-
plicable to merchandise which was imported by a passenger
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 personal
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 regula-
tions for the importation of merchandise. One Pearl Chain
vs. United States, 123 Federal, 371.

Merchandise for sale is not baggage within the meaning of
this section. United States vs. One Trunk, 175 Federal,
1012.

When one purchases wearing apparel and jewelry for per-
sonal 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 examination of
passengers’ effects, to give necessary information to com-
plete 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, complies with the sec-
SMUGGLING 541

tion under discussion. United States vs. One Trunk, 184
Federal, 317.

The list made out by the passenger should contain suffi-
cient information for the officers to require as to the duti-
able 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 neces-
sary to forfeiture. United States vs. Harts, 131 Federal,
886; 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, con-
cealment, 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 exceed-
ing 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 goods, such possession shall be deemed
evidence to authorize conviction, unless the defendant shall
explain the possession to the satisfaction of the jury.

§ 413. Offenses, Continued.—Section 2865 of the Old
Revised Statutes was repealed by the Forty-third Congress,
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 Sec-
retary of the Treasury shall award not exceeding in amount
one-half of the net proceeds, if any, resulting from such
542 SMUGGLING

seizure, after deducting all duties, costs and charges con-
nected therewith:

Provided, That for the purposes of this act smuggling
shall be construed to mean the act, with intent to defraud,
of bringing into the United States, or, with like intent, at-
tempting 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 contem-
plated, 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 em-
ployed in the custom-service, such compensation may, on
such recovery, be paid to such person so furnishing informa-
tion 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 Secretary of the
Treasury, out of any money appropriated for that purpose.

Sec. 5. That in all suits and proceedings other than crim-
inal arising under any of the revenue-laws of the United
States, the attorney representing the Government, when-
ever, in his belief, any business-book, invoice, or paper, be-
longing 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
thesuit or proceeding is pending may, at its discretion, issue a
notice to the defendant or claimant to produce such book, in-
voice, 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;

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 failure or refusal to produce
the same shall be explained to the satisfaction of the court.

And if produced, the said attorney shall be permitted, un-
der the direction of the court, to make examination (at
which examination the defendant or claimant, or his agent,
may be present) of such entries in said book, invoice, or
paper as relate to or tend to prove the allegation aforesaid,
SMUGGLING 543

and may offer the same in evidence on behalf of the United
States.

But the owner of said books and papers, his agent or at-
torney, 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 fur-
nishing information in any case wherein judicial proceedings
shall have been instituted, unless his claim to compensa-
tion shall have been established 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 Treasury;
but no certificate of the value of such services shall be con-
clusive of the amount thereof.

And when any fine, penalty, or forfeiture shall be col-
lected without 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 afore-
said, 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 information; 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 there-
of, shall be liable to a fine not exceeding five thousand dol-
lars, 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 afore-
said, who shall pay to any such 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 ac-
count of or because of such money, shall have a 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 disqualified from becoming a witness in any ac-
tion, suit, or proceeding for the recovery, mitigation, or re-
mission thereof, but shall be subject to examination and
cross-examination in like manner with other witnesses,
without being thereby deprived of any right, title, share, or
544 SMUGGLING

interest in any fine, penalty, or forfeiture to which such ex-
amination may relate; and in every such case the defendant
or defendants may appear and testify and be examined and
cross-examined in like manner.

[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 sec-
tion, 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 payment 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 in-
curred: 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 repealed 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
frauds 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 jurisdic-
tion thereof, and to initiate proper proceedings 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
SMUGGLING 545

or merchandise seized or subject to seizure, when the ap-
praised 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
particularly, the facts and circumstances of the case, and
praying for relief, such judge shall, if the case, in his judg-
ment, requires, proceed to inquire, in a summary manner in-
to the circumstances of the case, 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 peti-
tion should be refused.

Sec. 18. That the summary investigation hereby pro-
vided 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, to-
gether 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 tor the recovery thereof, to cease and be dis-
continued 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 incurred by a violation there-
of; and any officer or person who shall so compromise or
abate any such claim, or attempt to make such compromise
or abatement, or in any manner relieve or attempt to relieve
from such fine, penalty, or forfeiture, shall be deemed guilty
of a felony, and, on conviction thereof, shall suffer imprison-
ment 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 Secretary 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

35
546 SMUGGLING

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 Sec-

retary of the Treasury all practicable information neces-

any to enable him to protect the interests of the United
tates.

Sec. 21. That whenever, any goods, wares, and merchan-
dise shall have been entered and passed free of duty, and
whenever duties upon any imported goods wares, and mer-
chandise 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 pass-
age free duty and such settlement of duties shall, after the
expiration of one year from time of entry, in the absence
of fraud and in the absence of protest by the owner, im-
porter, agent or consignee, be final and conclusive upon all
parties.

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 ef-
fect or aid in effecting any entry of goods, wares, or mer-
chandise 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 dol-
lars, or imprisoned not more than two years, or both.”

This was old Section 5445: see United States vs. Lawrence,
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,
SMUGGLING 547

§ 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 collector of any collection dis-
trict, or shall at any time conceal or destroy any such in-
voice book, or paper for the purpose of suppressing any evi-
dence of fraud therein contained, shall be fined not more than

five thousand dollars, or imprisoned not more than two years,
or both.
CHAPTER XXIV.
FORM OF INDICTMENT.

Form of Indictment under Section 225, old Section 4046,
etc., for embezzlement:

“The United States of America.

“At a District Court of the United States of America, for
the District of Massachusetts, begun and holden at Boston,
within and for said district, on the first Tuesday of Decem-
ber 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 dis-
trict, during all of the year nineteen hundred and eight, was,
and ever since then 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 the first day of Feb-
ruary, 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 dur-
ing 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 dur-
ing 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 and under

548
FORM OF INDICTMENT 549

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 re-
tained by him for said year nineteen hundred and eight, which
said public moneys said Frank H. Mason, on said first day
of February, in the year nineteen hundred and nine, as such
officer, was charged, by certain acts of Congress, to wit, sec-
tions 823, 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 and 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 guilty of embezzlement 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 was—
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 preservers, adjustable to the bodies of human
beings, which had been placed thereon for the use of the pas-
sengers 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 preservers; that is to say, in the respect that, according
to the laws relating thereto, and the regulations thereunder,
the said life preservers 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-
550 FORM OF INDICTMENT

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 pre-
server should contain at least six pounds of good cork, which
should have a 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, negligence, and inatten-
tion to his duties by the said master and captain as aforesaid
were unsafe, unsuitable, and unserviceable, 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 preservers, 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 shoul-
der-straps and bands of the same were so decayed that it was
impossible to securely fasten the said life preservers to the
human body; and the said life preservers did not have the
buoyancy required by law; and the unsuitability and the in-
efficiency and uselessness 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 mentioned;
and which said unsuitable and inefficient appliances, he, the
said William H. Van Schaick, notwithstanding 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 per-
mitted the said vessel to go, and took the said vessel, on said
excursion, with the said unsuitable and inefficient life pre-
servers on board, and caused, suffered, and permitted the
same to be tendered and held out for the use of the passen-
gers and other persons on board of said steamboat, at the
time of her destruction by fire as hereinafter mentioned.
FORM OF INDICTMENT 551

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. Cham-
pion, and Charles B. Park, did then and there unlawfully,
knowingly, and feloniously conspire together to commit an of-
fense 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 instruments purporting to be and
representing tickets, as they then and there well knew,
chances, shares, and interests 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
instruments 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, certificates, 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 cer-
tain day, draw a prize or prizes at the purported lottery or
chance company, to wit, at the purported monthly draw-
ing of the so-called Pan-American Lottery Company, which
purported to draw monthly at Asuncion, Paraguy, which said
Pan-American Lottery Company purported to be an enter-
prise offering prizes dependent upon lot and chance, the spe-
cific method of such drawing being unknown to the grand
jurors, but which said papers, certificates, and instruments
purporting to be and representing tickets upon their face
purporting to be entitled to participation in the drawing for 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 unknown,
but that said drawing and lot and chance by which said prize
or prizes were to be drawn was purported to be under the
552 FORM OF INDICTMENT

supervision and direction of Enrigue Montes de Leon, man-
ager, and Bernardo Lopez, intervener, and which said pa-
pers, certificates, and instruments purporting to be tickets of
the said Pan-American Lottery 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 an-
other in the United States, to wit, from the State of Texas to
the State of California aforesaid, for the purpose of dis-
posing of the same, papers, certificates, and instru-
ments 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 Divi-
sion 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 Cali-
fornia, 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 package containing,
among other things, two whole tickets or papers or certifi-
cates 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 indict-
ment is as follows:

That on the 1st day of June, 1906, the defendants (nam-
ing them) did unlawfully and feloniously conspire, combine,
FORM OF INDICTMENT 553

confederate, and agree together to injure, oppress, 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 en-
joyment of freedom from involuntary servitude and slavery;
that in pursuance of said unlawful and felonious conspiracy,
combination, 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 in-
timidation him, the said John Reed, to then and there work
and labor involuntarily and against his will for said defend-
ants (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 here-
tofore, 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 divi-
sion 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, the said John Wesley
Boney, to be held by the said Edward J. McRee, William
McRee, and Frank I. McRee to a condition of peonage; for
that the said Edward J. McRee, 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,
554 FORM OF INDICTMENT

by force and against the will of him, the said John Wesley
Boney, and without 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 contract between them, the said Edward 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 afore-
said, 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, hereto-
fore, 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 district aforesaid, and
within the jurisdiction of this court, did then and there un-
lawfully 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 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 Ridley; 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 555

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, within
and for the district aforesaid, in the territory aforesaid, be-
ing 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 con-
tinuously 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, sometimes 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 District of
Iowa, and within the jurisdiction of this Court, did then and
there wilfully, 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.

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 approval of the Sec-
retary of the Treasury, did, on the twelfth day of March, in
the year of our Lord one thousand eight hundred and
556 FORM OF INDICTMENT

ninety-one, proscribe certain regulations, in substance and
to the effect, among other things, that the wooden or paper
packages in which retail dealers in oleomargarine were re-
quired 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 quantity of oleo-
margarine so sold, written, printed, or branded on such
wooden or paper packages and placed before the said word
‘pound,’ and that the said words ‘oleomargarine’ 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 writ-
ten, printed, or branded on such packages as aforesaid
should be so placed thereon as to be plainly visible to the pur-
chaser at the time of the delivery to him, such purchaser, by
retail 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 aforesaid, one Israel C. Kollock, late of the District
aforesaid, being then and there engaged in business as a re-
tail 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 and there, and
at said store knowingly sell and deliver to a certain Florence
Davis one-half of one pound of oleomargarine as and for
butter, which said one-half of one pound of oleomargarine
was not then and there and at the time of such sale and de-
livery thereof, packed in a new wooden or paper package
having then and there printed 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
‘oleomargarine’ in letters of like size, and a figure or figures of
like size written, printed, or branded thereon indicative (in
connection with the said words ‘pound’ and ‘oleomargarine’)
of the quantity of oleomargarine so sold and delivered to
her, the said Florence Davis, as aforesaid, and which said
FORM OF INDICTMENT 557

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 belonging 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 Miss-
issippi, 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 plundering
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. Bridgeman, late of the State and dis-
trict 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 dis-
trict of Montana, the said Morris L. Bridgeman, United
States Indian Agent as aforesaid, did then and there know-
ingly, wilfully, and unlawfully make and cause to be made,
558 FORM OF INDICTMENT

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 dollars 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 In-
dian, Bracelet, the sum of two hundred dollars for ten thous-
and feet of rough lumber. That the said claim was then and
there, to wit, at the time of the making and presenting there-
of 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 hun-
dred 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. Bridge-
man, United States Indian Agent, as aforesaid, was not then
and there entitled to have the said claim, so made and pre-
sented 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
there well knowing the same to be false, fictitious, and fraudu-
lent. 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, 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
FORM OF INDICTMENT 559

and fraudulent, 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.”

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 ist 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 behalf of the United States in an official function,
under and by the authority of a department of the Govern-
ment, 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 corruptly influence the action
of the said Charles L. Blanton on a matter then and there
pending before him in said official function as aforesaid, that
is to say, in making examination of and reporting and recom-
mending 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 Dis-
trict 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 felonious taking and carry-
ing away being with the intent, then and there, to steal the
said property, and defraud the United States of America
thereof,” etc.
560 FORM OF INDICTMENT

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 before that
time being a deputy registrar of voters at said registration
for said election aforesaid, and made application and made
and subscribed an affidavit for the purpose of causing him-
self to be registered as a voter at said registration, for said
election; and the said John Francis Green so making the said
application to be registered at said registration, 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 there was in due manner sworn by the said Frank Asche
Faron, and made oath before him then and there of and con-
cerning 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 administer 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, corruptly, 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 thou-
sand nine hundred and four, at Redding, in the county of
Shasta, State and Northern District of California, then and
there being, did then and there unlawfully, wilfully, know-
inly, and feloniously procure, instigate, 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, subscribed was true, said declaration and
FORM OF INDICTMENT 561

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, a sworn statement,—for the purchase of tim-
ber and stone lands described therein as the northwest
quarter of Section eight, township 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 Will-
iam H. Boren, and each of them, did then and there unlaw-
fully, wilfully, knowingly, and feloniously procure, in-
stigate, and suborn said John M. Layton wilfully and con-
trary to his oath to state and subscribe in said declaration
and affidavit a certain false and untrue material statement
that he, John M. Layton, had personally examined the lands
mentioned in said declaration and affidavit, and that he did
not apply to purchase the land above described on specula-
tion, 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 acquire 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 per-
sonally 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.”

36
562 FORM OF INDICTMENT

Under Section Clause of Section 5395, False Oath in
Naturalization, (Moore vs. United States,
144 Federal, 962).

“That George K. Moore, to wit, on the 10th day of Novem-
ber, 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 naturalization of one Setrak 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
O. Makee, a notary public in and for the County of Provi-
dence, in said State of Rhode Island, duly qualified and
authorized to administer oaths to persons making affidavits
in proceedings for naturalization, did make a false affidavit
touching matters in issue, and material in said proceed-
ings for the naturalization of said Setrak G. Moomjian;
in this, to wit, that he, the said George K. Moore, in
said affidavit falsely swore that he, said Setrak G. Moom-
jian, 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 afore-
said, to wit, on the 10th day of November, A. D. 1902, a
resident of the commonwealth of Massachusetts, 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 present that said affidavit so as afore-
said made by the said George K. Moore was false and un-
true, 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, Herman
Sparf, and Hans Hansen, mariners, late of that district, on
the 13th day of January, 1893, with force and arms, on the
high seas, and within the jurisdiction of the Court, and with-
in the admiralty and maritime jurisdiction 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
FORM OF INDICTMENT 563

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 a certain instrument or weapon (the
character and name of which were to the grand jury un-
known) then and there held in the hands of one of the defend-
ants (but of which particular one was to the grand jurors un-
known) “then and there piratically, wilfully, and feloniously,
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, sinking, 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 afore-
said, do say, that by reason of the casting and throwing the
said Maurice Fitzgerald 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 afore-
said, upon their oath 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 juris-
diction of the said United States of America and of this
court, in the manner and form aforesaid, priatically, wil-
fully, 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 de-
fendant was president of the Maverick National Bank, and
authorized to lawfully certify checks, charged,
564 FORM OF INDICTMENT

“That said Potter as such president as aforesaid, did then
and there, to wit, on said twenty-third day of July, at Boston,
aforesaid, within said district, and within the jurisdiction of
this court, unlawfully, 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 fol-
lowing—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 “he said persons, as copartners under the firm name and
style as aforesaid, by whom said check was then and there
drawn as aforesaid, 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 association 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 provided.”

 

Vader Section 5209, for Embezzlement by Bank
Officers.
Oeeds in United States vs. Northway, 120 U. S., 327; 30
Law Ed., page 665.) .

The count charges that the defendant, with proper allega-
tions of time and place, “‘was then and there president and
agent of a certain national banking association; to wit,
‘The Second National Bank of Jefferson,’ theretofore duly
organized and established and then existing and doing busi-
FORM OF INDICTMENT 565

ness 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. Northway, as such
president and agent, then and there had and received in and
into his possession certain of the moneys and funds of said
banking association of the amount and value of twelve thou-
sand dollars, to wit, then and there being the property of said
banking association, and then and there being in the posses-
sion 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 embezzle 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 Ameri-
ca, and of the value of five dollars, with the intention of him,
the said......to defraud the said...... ; and the said five
dollars was obtained from the said...... by the said......
pretending to be an officer of the United States, as afore-
said, and acting under the authority of the United States,
with the intention of him, the said...... , so pretending to
be an officer as aforesaid, to defraud the said...... of the
.said five dollars, and the value thereof: all of which was
against the peace, etc.

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 holden 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 selected, empaneled,
sworn, and charged to inquire into and a true presentment
566 FORM OF INDICTMENT

make of all crimes and offenses cognizable under the author-
ity of the laws of the United States of America, committed
within the Northern District of Texas, upon their oaths pres-
ent into open Court that heretofore, to wit, etc.,....... all
of which was 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.

eee eee meee mw we ee we eee wo wee

District Attorney.

Under Section 37 of the New Code, for Conspiracy
Against the United States.

eeeeoen that heretofore, to wit, on the .......... day of
Gases , A. D. 1910, one John Doe and one Richard
Roe, did unlawfully, fraudulently, and feloniously conspire
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 conspiracy, and to effect the ob-
ject 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 lascivious pamphlets, which said obscene,
lewd, and lascivious 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.

Under Section 211 of the New Code, Old Section 3893,
for Mailing Obscene Matter.

yaa that heretofore, to wit, on the .......... day of
Mewon cada , John Doe did unlawfully, knowingly, and wil-
fully, deposit and cause to be deposited in the United States
Post-office at Dallas, Texas, for mailing and delivery, cer-
tain non-mailable matter; that is to say, he, the said John
FORM OF INDICTMENT 567

Doe, on the date aforesaid, and within the venue aforesaid,
did unlawfully, knowingly, and wilfully deposit and 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 con-
tained one sheet of paper, upon which said sheet of paper
there was writing, but which said writing is too obscene,
lewd, and lascivious 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 aforesaid,
was by him, the said John Doe, so deposited and caused to
be deposited, with full knowledge upon his part of the writ-
ing 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.

risky 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.

Under Section 215 of the New Code, old Section 5480,
for Use of United States Mails to Promote
Fraud.

ey did unlawfully, knowingly, and fraudulently devise
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 further-
ance 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 de-
fraud was, in substance, as follows, to wit: that the said
568 FORM OF INDICTMENT

ihaiaeaeveten would pretend to be engaged in the legitimate
business of a wholesale dealer in produce, able and willing to
pay for consignments of produce, and being financially re-
sponsible, and that he would make prompt and ready re-
mittance for such consignments 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 purport to carry on said
business, would make consignments in answer to said
letters, of produce, to the said.......... , that the said

eokeon ee would sell the said produce and convert the
proceeds thereof to his own use and benefit, and make no re-
mittance 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 aforesaid, he would convert the produce
and the proceeds to his own use and benefit; and in pursu-
ance of such scheme and artifice, and to effect the object

thereof, he, the said .......... SOME thE saGeeeadoledtaoats day of
iS cet tsa , within the jurisdiction of this Court, to wit,
within .......... , etc., did unlawfully, knowingly, fraudu-

lently, and feloniously deposit and cause to be deposited, for
mailing and delivery in the United States Post-office at
Po hessicesoinen , a certain envelope, duly stamped with two-
cent United States postage stamps, and addressed to
ata Ns seat gars , and which said envelope, so deposited, and so
stamped and addressed, contained the following letter, to

and the grand jurors aforesaid, upon their oaths aforesaid,
represent and show to the Court that the said ..........
did not intend to pay the prices for the produce in said let-
ter set forth and promised; that he was not financially re-
sponsible as represented in said letter; that he was not a re-
putable and legitimate produce dealer, as represented in said
letter, but intended, as aforesaid, to appropriate the pro-
ceeds 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; contrary to the form, etc.
FORM OF INDICTMENT 569

Under Section 206 of the New Code, False Returns to
Increase Compensation of Postmaster.

ena 54 one John Doe was postmaster of the United States
Post-office at .......... , in said county and district, the
same being a post-office of the fourth class; and the said
Sasi , so being such. postmaster, as aforesaid, on the
date aforesaid, and in the county and district aforesaid, did
unlawfully, knowingly, and fraudulently, for the purpose of
fraudulently increasing his compensation as such post-
master, under the Acts of Congress, make a certain false re-
turn to the Auditor of the Treasury for the Post-office De-
partment 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 stamps can-
celed in payment of undercharges and unpaid postages up-
on matter delivered at the said post-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

stieeaos , at the time of making the said return, as afore-
said, 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. District of Massachusetts, begun and holden at Boston,
within and for said district, on the first Taesday of Decem-
570 FORM OF INDICTMENT

ber in the year of our Lord one thousand nine hundred and
nine.

“First Count. The jurors for the United States of Ameri-
ca, within and for the District of Massachusetts, upon their
oath, present that Frank H. Mason, of Boston, in said dis-
trict, 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 Mas-
sachusetts, 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 every
name and character, and all the necessary expenses of his
office, and to verify such return by his oath; that said Frank
H. Mason, on the twenty-fourth day of September, 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 Dis-
trict Court of the United States for the District of Mas-
sachusetts, and then and there made and subscribed a cer-
tain declaration and certificate in writing before said judge,
on the occasion of his making his return as aforesaid 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 mat-
ters contained in said return, and took his corporal oath, be-
fore 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 dec-
laration and certificate declare and certify certain material
matters, armong 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 re-
ceived, directly or indirectly, any other money or considera-
tion 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 proceedings, 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 thousand and
nineteen dollars and forty-six cents; whereas in truth and in
FORM OF INDICTMENT 571

fact said Frank H. Mason, at the time he took said oath and
made and subscribed said written declaration and certifi-
cate, had, as he then well knew, received as such clerk, dur-
ing said half year, fees and emoluments in bankruptcy pro-
ceedings 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 hun-
dred 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 eighty-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 Deny:

Under Section 125 of the New Code, Old Section 5392,
for Perjury.

tte teas that heretofore, to wit, on the .......... day of
bate a ciht ras , in the year .........., there came on to be
tried in the District aforesaid, and in the United States Dis-
trict Court, before the Honorable .......... , Judge thereof,
and a jury duly empaneled and sworn for that purpose, a cer-
tain 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
SAIC: ar acrieannarnzed for having unlawfully engaged in the busi-
ness of aretail liquor dealer without first having paid the
special tax therefor, as required 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, onthe ........
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 behalf of the said defendant, the said
572 FORM OF INDICTMENT

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 in 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
fe rotpah uae and whether ..........; and the grand jurors
upon their oaths aforesaid, that the said John Jones, so being
sworn and so having taken his oath as aforesaid, on the said
sph nuslienaess day of .........., in the said yearof.........,
and within the said county, division, district, and state afore-
said, upon the said trial of the said issue, as aforesaid, wil-
fully 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 following; that
is to say, that .......... and that .......... ; whereas, in
fact it was not, and is not, true, that .......... and that
5 bia Hinde e Oe ; and at the time of so swearing and deposing,
the said John Jones did not believe it to be true that .....
Aiki cs and that ..........; and the grand jurors aforesaid,
upon their oaths aforesaid, do say that the said John Jones,
in the manner and form aforesaid, having taken an oath be-
fore a competent tribunal aforesaid, in a case wherein a law
of the said United States authorized an oath to be admin-
istered that he would truly depose and testify, wilfully, and
contrary to his said oath, did depose and state material mat-
ters 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.

ee one .......... with intent to defraud certain per-
sons to the grand jurors unknown, did unlawfully, feloni-
ously, 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
FORM OF INDICTMENT 573

wit, the circulating notes of the .......... banking associa-
tion, each of which said falsely made, forged, and counter-
feited notes was in this tenor, 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.

beat ates .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 authorized, 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 defrauding 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. cae euwenes , at the time of so passing, uttering, and
publishing, and attempting 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 counter-
feited note was falsely made, forged, and counterfeited, and
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.

Seta did then and there knowingly, wrongfully, unlaw-
fully, 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 cer-
tain false, forged, and counterfeit coins, each of which said
false, forged, and counterfeit coins was then and there in the
574 FORM OF INDICTMENT

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 de-
fraud certain persons to the grand jurors unknown; con-
trary, etc.

For Passing, Etc., Counterfeit Coins, Section 163 of the
New Code, Old Section 5457.

ideas And the grand jurors aforesaid, upon their oaths
aforesaid, do further present into open Court, that hereto-

fore, to wit, on the .......... day Ofc awscaes , A. D.
ieceesensicueen , one John Doe, within the .......... Division
OL thE s.o oie es District of .......... , did then and there

knowingly, wrongfully, feloniously, and fraudulently, have
in his possession five hundred certain false, forged, and coun-
terfeited coins, each of which said false, forged, and counter-
feited 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 dol-
lars, 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 know-
ingly, wrongfully, unlawfully, and fraudulently pass, utter,
and publish one of the said 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 counter-
feited, 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 of Frederick County, in the district afore-
said, at said county, heretofore, to wit, on the...... day
Olosuwes , in the year of our Lord one thousand eight hun-
FORM OF INDICTMENT 575

dred and ninety-two, at the said Western District of Vir-
ginia, 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 Con-
gress, to wit, an appropriation for the payment of letter
carriers at experimental free delivery offices, did unlaw-
fully 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. §. 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 Divi-
sion 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, selected,
and sworn in and for the Southern Division of the Southern
District of Alabama, upon their oath do 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 this 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, 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.
976 FORM OF INDICTMENT

Second Count.

And the grand jurors aforesaid, upon their oath aforesaid,
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 Dis-
trict 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 Ala-
bama, convicted in said Court of the offense of petit larceny
and was fined the sum of, to wit, fifteen dollars, and judg-
ment was rendered against him by said Court for the
amount of said fine and also for the further and additional
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 conviction of the said
Ed. Rivers as aforesaid, and before the finding of this in-
dictment, at the request of the said Ed. Rivers, pay the said
sum of to wit, fifty-eight dollars and seventy-five cents in
settlement of said fine and cost, and by reason of said pay-
ment 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. Rey-
nolds 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. Reynolds, in Monroe County, and under his direc-
tion as a farm hand, to pay said sum of fifty-eight dollars and
seventy-five cents, for the term of nine months and twenty-
four days, at the rate of six dollars per month, together 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
FORM OF INDICTMENT 577

on the twenty-eighth day of February, in the year of our
Lord nineteen hundred and eleven; which said contract
was substantially in words and figures as follows:

“Tabor Contract.

“The State of Alabama, Monroe County:

‘“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 rendered against me
for the amount of said fine, and also in the further and addi-
tional 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.
Reynolds, 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 dol-
lars per month, together with my board, lodging, and cloth-
ing during the said time of hire, said time of hire commenc-
ing on the 4 day of May, 1910, and ending 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 ap-
proved 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 if he, the said Ed Rivers,
refused to perform 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

37
578 FORM OF INDICTMENT

so made, voluntarily perform work and labor for said J. A.
Reynolds, 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 aforesaid, 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 aforesaid,
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 Dis-
trict 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 this
grand jury, did then and there arrest and cause to be ar-
rested one Ed Rivers, whose name other than as herein
stated is unknown to this grand jury, for the purpose of com-
pelling 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 indict-
ment, 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 Contract.
“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
FORM OF INDICTMENT 579

duly sworn, says that he has probable cause for believing and
does believe that Ed Rivers on whom a fine of fifteen dol-
lars was imposed in the county Court of Monroe County,
Alabama, at the May Term, 1910, of said Court, for the of-
fense of petit larceny, who in open Court signed a written
contract approved by the judge of said Court, whereby in
consideration of J. A. Reynolds and A. C. Hixon becoming
his sureties on a confession of judgment for the fine and cost,
agreed to perform 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 judg-
ment, failed or refused, without a good and sufficient excuse,
to perform said labor for said J. A. Reynolds, which in
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 day of June, 1910.

“T, B. Slaughter,

“Judge of the County Court.”

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 centand judgment was by thesaid Courtrendered 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 judgment
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. Brough-
ton, on his plantation in Monroe County and under his
580 FORM OF INDICTMENT

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 end-
ing on the twenty-second day of August, nineteen hundred
and eleven; and the grand jurors aforesaid, upon their oath
aforesaid, do further charge and present that the object and
purpose of the said J. A. Reynolds 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. Reynolds 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. Brough-
ton, 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 manner
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,
FORM OF INDICTMENT 581

Fred Withers, and James McBee on or about the 23rd day
of January, in the year 1913 in the said division of said dis-
trict, and within the jurisdiction of said Court, in the coun-
ty of Wyandotte and State of Kansas, did then and there,
without lawful authority, knowingly, wrongfully, unlaw-
fully, wilfully, and feloniously alter, deface, break, and de-
stroy a certain mark, tag, or label, in words and figures as
follows, to wit: ‘“‘Government 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 inspec-
tion and offered for transportation from the State of Kan-
sas to the State of New Jersey; said mark, tag, or label hav-
ing 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 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.

And the grand jurors aforesaid, on their oath aforesaid,
do further present that the said Charles Lewis, Lewis How-
ard, 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 feloniously alter, deface, break, and
destroy a certain seal, label or identification device in words
and figures as follows 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.
582 FORM OF INDICTMENT

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. R. L. No. 4422, containing meat and
meat products then and there under Government supervision
for inspection and offered for transportation from the Stale
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 ac-
cordance with the rules and regulations issued by the Secre-
tary of Agriculture under authority of the act of Congress
approved June 30, 1906, entitled “an act making appro-
priations 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, 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. §. 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, nine-
teen hundred and thirteen, enter the United States from
Great Britain, Great Britain being then and there and at all
FORM OF INDICTMENT 583

times mentioned in this indictment a party to an agreement
and arrangement for the suppression of the white slave traf-
fic, adopted July twenty-fifth, nineteen 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-eighth day of July, nineteen hundred and thirteen,
to the eighth day of September, nineteen hundred and
thirteen.

That said Elie Portale and Juliette Portale, alias as afore-
said, and each of them, so knowingly keeping, maintaining,
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-eighth day of July,
nineteen hundred and thirteen, the date of the commence-
ment of ‘said keeping, maintaining, controlling, and harbor-
ing 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, national-
ity, and parentage, and concerning her procuration to come
to this country within the knowledge 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 dignity of the United States of
America.
584 FORM OF INDICTMENT

Form of Indictment for Violation of Quarantine Act of
March 3, 1905, 33 Stat. 1264, as Amended
March 4, 1918, Applying to Receiv-
ers Etc., as Approved in U. §.
vs. Nixon et al., 235 U.

8. 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, empaneled, sworn
and charged to inquire of and concerning 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 hereinafter mentioned, one William C.
Nixon and one William B. Biddle, and one Thomas H. West,
were the duly appointed, qualified and acting receivers of
the St. Louis and San Francisco Railroad Company, a cor-
poration 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 man-
aging, 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, Choc-
taw County, Oklahoma, a certain shipment of thirty-eight
head of cattle, consigned by H. L. Sanguin to the Clay-
Robinson Live Stock Commission Company, Kansas City,
Missouri, was delivered to the St. Louis and San Francisco
Railroad Company, and said receivers for transportation
from Hugo, Choctaw County, Oklahoma, to Kansas City,
Jackson 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,
Jackson County, Missouri, and delivered to the Clay-
Robinson Live Stock Commission Company as aforesaid.
FORM OF INDICTMENT 585

And the grand jurors aforesaid, on their oaths aforesaid,
do further present and charge that the Secretary of Agri-
culture 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 Oklahoma, there existed among the cattle a
contagious and infectious disease known as splenetic, south-
ern, or Texas fever, and did on or about the 7th day of Feb-
ruary, 1913, in accordance with the law in such cases made
and provided, make, issue, and promulgate an order quar-
antining 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 transporta-
tion of cattle from said county of Choctaw, in the State of
Oklahoma, into any other State of Territory in the United
States not within the quarantined district so established by
the said Secretary of Agriculture of the United States, ex-
cept 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 regulation of said Secretary of Agriculture was duly
published, in accordance with law, in The Daily Oklahoman,
a newspaper duly and regularly published in Oklahoma
City, Oklahoma, in its issue of February 25, 1913; that
notice of said order made, issued, and promulgated by the
Secretary of Agriculture as aforesaid was duly and legally
served upon said defendant, St. Louis and San Francisco
Railroad Company, by service upon F. C. Reilly, assistant
freight traffic manager of said railroad company, at St.
Louis, Missouri, a duly and legally qualified agent of said
railroad company, and service thereof was duly acknowl-
edged on March 10, 1913.

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 ap-
proved 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 cattle and other
live stock from the territory quarantined under the law here-
586 FORM OF INDICTMENT

inbefore 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 carrying interstate
shipments of cattle from the quarantined area (except those
accompanied by certificates of inspection issued by inspec-
tors of the Bureau of Animal Industry, covering shipments of
cattle dipped as provided in Regulation 17 hereof, and ship-
ments 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 bold-
face 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 transportation
company, and the name of the place of destination. Each
of the waybills, conductors’ manifests, memoranda, 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 transportation 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 cattle from the quarantined area, and for the
billing, etc., covering the same. If for any reason the pla-
cards required by this regulation are removed from the cars
or are destroyed or rendered illegible, they shall be imme-
diately replaced by the transportation company or its agents,
the intention being that legible placards designating the
shipment as ‘Southern Cattle’ shall be maintained on the car
from the time such shipments leave the quarantined area
until they are unloaded at final destination and the cars are
treated as hereinafter specified.”
FORM OF INDICTMENT 587

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 regularly
published in Oklahoma City, Oklahoma, in its issue of March
24, 1909, and that notice of said order, made, issued and
promulgated by the Secretary of Agriculture 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
quarantined 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. Biddle
and Thomas H. West, receivers as aforesaid, did unlaw-
fully, wilfully, and feloniously receive for transportation
the said thirty-eight head of cattle consigned by H. L.
Sanguin to the Clay-Robinson Live Stock Commission Com-
pany, and did then and there unlawfully, wilfully, and fel-
oniously transport said shipment of cattle as aforesaid from
Hugo, Choctaw County, Oklahoma, a point within that por-
tion of the State of Oklahoma quarantined by order of the
Secretary of Agriculture of the United States as aforesaid
into Kansas City, Jackson County, Missouri, in the division
and district aforesaid, the same being a point in an area and
portion of the United States beyond and without the quar-
antined district theretofore established by the said Secre-
tary 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 re-
ceivers as aforesaid received said cattle for transportation
as aforesaid, and transported and delivered the same to the
consignee at Kansas City, Missouri, as aforesaid, when the
cars in which said cattle were transported by said defend-
ants as aforesaid did not have securely affixed to both sides
588 FORM OF INDICTMENT

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 information concerning or pertaining to said
shipment, as required by the statutes and regulations of the
said Secretary of Agriculture, as hereinbefore set forth, and
when the waybills, conductors’ manifests and memoranda,
and bills of lading pertaining to said shipment did not have
the words, “Southern Cattle” plainly written or stamped
upon their face, as required by the statutes, 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. Eugene
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 the United States post-
office establishment, with intent to incite and induce such
persons so intended to be defrauded to open correspondence
with them, by means of printed circulars, letters, and re-
ports distributed through the mail, deposited and caused to
be deposited in said United States mail for mailing and de-
livery to such divers 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 corporation
to be styled the International Development Company, 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 in-
corporated and organized by said defendants as a part of their
scheme to defraud; that defendants would, by themselves
FORM OF INDICTMENT 589

and through the Development Company, cause to be pro-
cured and obtained certain coal claims, having little or no
value, situated 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 considera-
tion that the said Michel Company would issue to defend-
ants and the Development Company a large majority of its
capital stock, fully paid up; that defendants 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 capital 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 Company would issue to defendants and the De-
velopment Company 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 organized
another corporation, to be styled the Empire Coal & Coke
Company, with a capital stock of 1,500,000 shares of the par
value of $1 each, for the purpose of taking over said claims, in
consideration that said Empire Company would transfer
to defendants and the Development Company a large ma-
jority of the stock of said corporation, fully paid up; that
defendants would cause to be procured a. charter for the con-
struction and operation of a railroad, ostensibly to furnish
transportation facilities 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 consid-
eration of the transfer by said Railway Company to de-
fendants 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 Com-
pany, the Crown Company, the Empire Company, and the
Railway Company should and would become the treasury
stock of each of said corporations, respectively; that de-
fendants would from time to time dispose of large amounts
590 FORM OF INDICTMENT

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 Com-
pany defendants would procure and maintain the manage-
ment and control of the Development Company, and through
said ownership, and by manipulation of the stock and books
on account of the various corporations, said defendants would
obtain and maintain control of all such corporations with in-
tent and purpose to defraud said divers persons.

It was further a part of the scheme that defendants, in
their own names and in the name of the Development Com-
pany, 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 corpora-
tions; and, in pursuance of such scheme, defendants did rep-
resent and state that the properties owned by said corpora-
tions, and the capital stock thereof, were and would become
of great value, whereas in 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 de-
posits of coal, which fact was fraudulently used by the de-
fendants and the Development Company to aid them in the
sale of the worthless stock of the aforesaid various corpora-
tions so held individually by defendants and the Develop-
ment 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 defendants 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 connection 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, whereas 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
FORM OF INDICTMENT 591

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 in-
tending 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 re-
ceived by the Empire Company $100 would be used by that
company in the purchase of one share in the Railway Com-
pany, and that the $100 so expended would be placed in the
treasury of the Railway Company to be used in the construc-
tion of said road, whereas in truth and in fact, as the de-
fendants well knew, no part of said $100 would be placed in
the treasury of said Railway Company, or used for the con-
struction 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 the stock of the various corporations to be
offered for sale would be treasury stock of the various cor-
porations, and that the proceeds derived from the sale of
such stock would be used for the equipment and develop-
ment of the properties, whereas, in truth and in fact, as de-
fendants well knew, the stock so sold was not treasury stock,
but was, with but few exceptions, the individual stock of
defendants 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 defendants and the
Development Company to their own use and benefit, it
being the intent and purpose of the defendants 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 De-
velopment Company, with intent 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 feloniously
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 De-
velopment Co., per R. G. Belden.”
592 FORM OF INDICTMENT

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 hundred 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 follow-
ing manner and particulars; that is to say: It was the pur-
pose and object of the said conspirators, and each of them to
willfully, knowingly, and feloniously 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 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 purposes 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 :
Eastern Division. ct.

The grand jurors of the United States of America, in-
quiring for the Eastern Division of the Northern District
of Illinois, upon their oaths present that 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, unlawfully and
knowingly did cause to be transported in interstate com-
merce, that is to say from Pittsburgh, in the state of Penn-
sylvania, 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 car-
riers, to wit, Pennsylvania Company, a corporation under the
laws of the State of Pennsylvania, and Pittsburgh, Ft.
FORM OF INDICTMENT 593

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 transportation
of persons by railroad over their railway routes from Pitts-
burgh, 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 afore-
said, 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
ninteen hundred ten, unlawfully and knowingy 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 cer-
tain 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; 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 pro-
vided.

3. And the grand jurors aforesaid, upon their oaths afore-
said, 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 afore-
said, 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
594 FORM OF INDICTMENT

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 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 contrary to the
form of the statute of the same in such case made and
povided.

4. And the grand jurors aforesaid, upon their oaths afore-
said, 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 afore-
said, 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 corporation under the laws of the state of Penn-
sylvania, and Pittsburgh, Ft. Wayne and Chicago Railway
Company, a corporation under the laws of the state of IIl-
inois, 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 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 afore-
said, 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, unlawfully, knowingly and feloni-
ously did aid in obtaining transportation for a certain girl,
to wit, Belle Schreiber, otherwise known as Mrs. Jack John-
FORM OF INDICTMENT 595

son, 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 North-
ern District of Illinois, over the railway route of certain com-
mon carriers, to wit, Pennsylvania Company, a corporation
under the laws of the state of Pennsylvania and Pittsburgh,
Ft. Wayne & Chicago Railway Company, a corporation un-
der the laws of the state of Illinois, which corporation com-
mon carriers were then and there engaged in the transporta-
tion of persons by railroad over their railway route from
Pittsburgh aforesaid to Chicago aforesaid, for a certain im-
moral purpose, to wit, for the purpose of having unlawful
sexual intercourse with her, the said Belle Schreiber, other-
wise 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 afore-
said, 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, unlawfully, knowingly and feloni-
ously 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 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 cer-
tain common carriers, to wit, Pennsylvania Company, a
corporation under the laws of the state of Pennyslvania and
Pittsburgh, Ft. Wayne & Chicago Railway 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 aforesaid to Chicago aforesaid, for a
certain immoral purpose, to wit, for the purpose of com-
mitting 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 statute of the same in such case made and
provided.

7. And the grand jurors aforesaid, upon their oaths afore-
said, do further present that the said John Arthur Johnson,
596 FORM OF INDICTMENT

otherwise known as Jack Johnson, late of the city of Chi-
cago, on, to wit, the 15th day of October, in the year of our
Lord nineteen hundred and ten, unlawfully, knowingly and
feloniously did cause to be procured 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 transported from Pittsburgh, Pennsylvania, to
Chicago, Illinois, over the railway routes of certain common
carriers hereafter mentioned) to be used by a certain girl,
to wit, Belle Schreiber, otherwise known as Mrs. Jack John-
son, 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 corpora-
tion 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 Illinois, which corporation
common carriers were then and there engaged in the trans-
portation 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 Schreiber, otherwise known as Mrs. Jack
Johnson, was then and there transported in interstate com-
merce 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, unlawfully, know-
ingly 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 en-
titled the holder thereof to be transported from Pittsburgh,
Pennsylvania, to Chicago, Illinois, 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 Pittsburgh in the state of Pennsylvania to
FORM OF INDICTMENT 597

Chicago in the state of Illinois, over the railway route 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 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 route from Pittsburgh, in the state of Penn-
sylvania, to Chicago in the state of Illinois, for a certain im-
moral purpose, to wit, for the purpose of having unlawful
sexual intercourse with her, the said Belle Schreiber, other-
wise 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 Pitts-
burgh aforesaid to Chicago aforesaid, 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 afore-
said, do further present that the said John Arthur John- |
son, 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, unlawfully, 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 transported from Pittsburgh,
Pennsylvania, to Chicago, Illinois, over the railway 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 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 cor-
poration common carriers, towit, 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 Illinois, which corporation
common carriers were then and there engaged in the trans-
portation of persons by railroad over their. railway. routes
from Pittsburgh, in the state of Pennsylvania, to Chicago, in
the state of Illinois, with the intent on the part of said John
Arthur Johnson, otherwise known as Jack Johnson, to in-
598 FORM OF INDICTMENT

duce the said Belle Schreiber to give herself up to the prac-
tice of prostitution, whereby said girl, Belle Schreiber, other-
wise known as Mrs. Jack Johnson, was then and there trans-
ported 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.

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, unlawfully did know-
ingly 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 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 transportation of per-
sons by railroad 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 form of the statute
of the same in such case made and provided.

11. And the grand jurors aforesaid, upon their oath afore-
said, 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, unlawfully 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 corporation under the laws of the state of
FORM OF INDICTMENT 599

Pennsylvania, 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 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 pur-
pose of committing the crime against nature with and upon
her, the said Belle Schreiber, otherwise 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.

ee ee eee mem ee eee woe

United States Attorney.
PETITION FOR WRIT OF ERROR.
No.

UNITED STATES OF AMERICA In the District Court
of the United States
VS. for the Northern Dis-
trict of Texas.
JOHN DOE.

John Doe, the defendant, in the above-numbered and en-
titled 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
Kobe ain Da A. D. 1915, comes by Lilian B. Aveilhe, his at-
torney, and petitions the Court for an order allowing the de-
fendant to prosecute a writ of error to the Honorable United
States Circuit Court of Appeals for the Fifth Circuit under
and according to the laws of the United States in that be-
half provided, and your petitioner will ever pray.

Lilian B. Aveilhe,
Attorney for Defendant.

ORDER ALLOWING WRIT OF ERROR.
No.

UNITED STATES OF AMERICA In the United
States District Court

vs. for the Northern Dis-
trict of Texas, at Dal-
JOHN DOE. las.

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 re-
cords and proceedings and papers upon which the judg-
ment herein was rendered, duly authenticated, may be sent

600
FORMS FOR WRIT OF ERROR 601

to the United States Circuit Court of Appeals for the Fifth
Judicial Circuit, and that such other and further proceed-
ings 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 operate as a
supersedeas bond.

eee me em ewer mee noe

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

The President of the United States, to the Honorable Judge
of the District Court of the United States for the North-
ern Distict 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 will-
ing that error, if any hath been, should be duly corrected, and
full and complete justice done to the parties aforesaid, in this
behalf, do command you, if judgment be therein given, that
then, under your seal, distinctly 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 error,
what of right, and according to the laws and customs of the
United States should be done.

ee ww me tee ee ree ew tw we

United States District Judge.
602 FORMS FOR WRIT OF ERROR

WITNESS THE HONORABLE

 

Judge of the District Court of the
United States, this the ......
Gay -OF wis niess , 1915, and
the: sc cesiaves year of the in-
dependence of the United
States of America.

ATTEST:

ee

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 appear
at a session of the United States Circuit Court of Appeals for
the Fifth Circuit to be held at the city of New Orleans in said
Circuit on the ...... day Of coccsee ss next pursuant to a
writ of error filed in the Clerk’s office of the District Court of
the United States for the Northern District of Texas, where-
in 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
speedy justice should not be done to the parties in that be-
half.

WITNESS THE HONORABLE EDWARD M. WHITE,
CHIEF JUSTICE OF THE UNITED STATES, this the
a gees day of .......... in the year of our Lord one thou-
sand nine hundred and ....... , and of the independence of
the United States of American the One Hundred and

ee ee ey

Ce ee meee wee meee rer rn esree

United States District Judge.
or

Bee eee ema enna emer sree

Clerk of the United States District Court for the Northern
District of Texas.
FORMS FOR WRIT OF ERROR 603

WRIT OF ERROR BOND.
No.

UNITED STATES OF AMERICA In the District Court
of the United States
VS. for the Northern Dis-

trict of Texas.
JOHN DOE.

We, John Doe, and the other subscribers hereto, jointly
and severally, acknowledge ourselves indebted to the United
States of America in the sum of one thousand dollars law-
ful 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 plain-
tiffs and John Doe is defendant, for a review of the judg-.
ment 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 Northern
District of Texas on and after the filing in said District Court
of the mandate of the United States Circuit Court of Ap-
peals 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 judgment or order which may
be had or rendered therein in this case, and shall abide by
and perform 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
_ Been em ee A. D. 1915.

Ce
Ce

eee eee eee ne ee eer eens
604 FORMS FOR WRIT OF ERROR

Taken and approved this the ......
day of .......... ' A. D. 1915, be-
fore me.

United States District Judge.

PRAECIPE FOR RECORD.
UNITED STATES OF AMERICA)
In the United States

ve District Court for the
ow oo.
To L. C. Maynard, exas, ;
Clerk.

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; sentence;
defendant’s motion for new trial; defendant’s amended mo-
tion in arrest of jugment; 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.
CHAPTER XXV.
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.

EXPLANATION—AII criminal statutes were revised and
collated into what is called the Revised Statutes of 1878. Be-
tween that time and 1910 there was, of course, much im-
portant criminal legislation and the 1910 Code, therefore,
became necessary. That code, however, does not include all
of the federal criminal statutes, many still remaining alive
in the 1878 revision. There are also many laws having crim-
inal 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 criminal
statutes 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 copies of this gov-
ernment publication, and have included it herein. The in-
formation 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 in-
cluded 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 twenty-four chapters. With those
and this chapter every criminal statute up to January 1,
1916 is present or information as to its whereabouts is given
in this book.

605
606 CRIMES.—Cu. 1.

[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 Representatives of
the United States of America in Congress assembled, That the
penal laws of the United States be, and they hereby are,
codified, revised, and amended, with title, chapters, head-
notes, and sections, entitled, numbered, and to read as
follows:

CRIMES

CHAPTER ONE.

OFFENSES AGAINST THE EXISTENCE OF THE GOVERNMENT.

Sec. Sec.
1. Treason. 6. Seditious conspiracy.
2. Punishment of treason. 7. Recruiting soldiers or sailors to
3. Misprision of treason. serve against the United
4, Inciting or engaging in rebellion States.

or insurrection. 8. Enlistment to serve against the
5. Criminal correspondence with United States.

forign governments.

Treason.

em «Sc. 1. Whoever, owing allegiance to the
_#-S. 2 5331. United States, levies war against them or
U. 8. ». Vilato, 2 Dall.,

370; ‘the Inaurzente, 3 adheres to their enemies, giving them aid and
Bian t Sexton 4 comfort within the United States or else-
Granch, 75: 05s. Bur, where, is guilty of treason.
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 ». Macon, Chase, 136, 22 Fed. Cas., 20; U. 8. v. Burr, 1 Burr's
Trial, 14, 16, 2 Burr's Trial, 402, 405, 417, 25 Fed. Cas., 2, 52, 55, 210; U.S. ». Cathcart, 1 Bond,
556, 25 Fed. Cas., 344; U. 8. 1. Greathouse, 2 Ab. C. C., 364, 26 Fed. Cas., 18; U. 8. . Hodges,
Brun. Col. Cas., 465, 26 Fed. Cas., 332, U. 8. ». Hoxie, 1 Paine, 265, 26 Fed. Cas., 397; U.S. 2.
Mitchell, 2 Dall., 348, 26 Fed. Cas., 1277; U. 8. ». Vigol, 2 Dall., 346, 28 Fed. Cas., 376; U. 8. ».
or, 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 o 602, 30 Fed. Cas., 1039; 2 Spr., 292, 30 Fed. Cas., 1042; 1 story, 614, 30 Fed. Cas.
1046; 2 all., ir., 134, 30 Fed. Cas., 1047; 2 Spr., 285, 30 Fed. Cas., 1049.

son unishment of trea = Sec. 2. Whoever is convicted of treason

aos shall suffer death; or, al the discretion of the

court, shall be imprisoned not less than five
Wel eras: 22 years and fined not less than ten thousand
502 Whe Meier, dollars, to be levied on and collected out of
93.0. 8. 274, any or all of his property, real and personal
of which he was the owner at the time of committing

such treason, any sale or conveyance to the contrary

 

R. 8., 8. 5332.
CRIMES.—Ch. 1. ; 607

notwithstanding; and every person so convicted of treason
shall, moreover, be incapable of holding any office under
the United States.

Sec. 3. Whoever, owing allegiance to the
United States and having knowledge of the 28: °3 __
commission of any treason against them, con- wher: "on entre.

ceals, and does not, as soon as may be, dis- tn o oa. tn oe

close and make known the same to the Pi at of Land,
President or to some judge of the United “
States, or to the governor or to some judge or fustine 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.

Sec. 4. Whoever incites, sets on foot, ;,/citing or enaasing
assists, or engages in any rebellion or insur- "®t
rection against the authority of the United as. 5334.
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.

Misprision of treason.

Sec. 5. Every citizen of the United States, ,,Crimizsl, comespond-
whether actually resident or abiding within ™"*
the same, or in any place subject to the juris- zg, 4.5335.
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 in-
tent to influence’ the measures or conduct of any foreign
government or of any officer or agent thereof, in relation 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 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
608 ~  CRIMES.—Cz. 1.

thereof for redress of any injury which he may have sus-
tained from such government or any of its agents or subjects.

Seditious conspiracy.
B.5&., 8. 5336.

Sec. 6. If two or more persons in any
_RS. 9.5336. State or Territory, or in any place subject
wot, farte Lane, 18 to the jurisdiction of the United States, con-

spire 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
dollars, or imprisoned not more than six years, or both.

aq ecruiting soldiers of SEC. 7. Whoever recruits soldiers or sailors

the: United Efates within the United States, or in any place
R.S., 8. 5337. 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.

Enlistment to ‘
ag ainet the Unied EC. 8. Every person enlisted or engaged

within the United States or in any place

R.S., 0. 5338. subject to the jurisdiction thereof, with in-

tent to serve in armed hostility against the

United States, shall be fined one hundred dollars and im-
prisoned not more than three years,
CHAPTER TWO.

OFFENSES AGAINST NEUTRALITY.

Sec.
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 ves-
sel of war.

13. Military expeditions against
people at peace with the
United States.

Sec.
14.
visions.
15.
depart.
16.
clearance.
17.
toms.
18.

Sec. 9. Every citizen of the United States
who, within the territory or jurisdiction
thereof, accepts and exercises a commission
to serve a foreign prince, state, colony, dis-
trict, 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 thou-

sand dollars and imprisoned not more than Re

three years.

Sec. 10. 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 be-
yond the limits or jurisdiction 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 privateer,

Enforcement of foregoing pro-
Compelling foreign vessels to
Armed vessels to give bond on
Detention by collectors of cus-

Construction of this chapter.

Accepting a foreign
commission.

R. 58., s. 5281.

U. 8. 0, Williams, 3
Cranch, 83; Ker ». ii.
nois, 119 U. 8., 486; Wi-
borg ». U. 8, 163 U. 8.,
632, 73 Fed. Rep., 159;
John Bassett Moore upon
The Se a the or)
vadorean Bes,
Am. L. Rev., The
Ambrose Light, 3 Fed.
p., 408,

Enlisting in foreign
service.

R.§., 8. 5282.

Chacon ». Bales of
Cochineal, 1 Brock., 478,
5 Fed. Cas., ome uigh-
ton v. Taylor, 2 Paine,
665, 13 Fed. Cas., 1179;
Ex parte Needham, Pet.
C. C.; 487, 17 Fed. Cas.,
1274, U.S. 2. Hertz, 3
Pittab., L. J., 194, 26
Fed. Cas., 293; U. B. 0.
Kazinski, 2 Sprague, 7,
26 Fed. Cas., ree 4A.G.
re 336; TA . G. Op.,

shall be fined not more than one thousand dollars and

imprisoned not more than three years.

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 to be fitted out and armed, or
knowingly is concerned in the furnishing,
fitting out, or arming of any vessel, with

609

39

Arming vessels against
people at peace with the
United States.

R. 8., 8. 5283.

U. 8.» Guinet, 2
Dall, 321; Moodie »
The Alfred, 3 Dall.
307; Gelston ». Hoyt,
3 Wheat., 246; The
Estrella, 4 Wheat., 298;
610

La Conception, 6
Wheat., 235; The Pane
tissima’ Trinidad, 7
Wheat., 283; The Gran
Para, Wheat., _ 471;
The Santa Maria, 7
Wheat., 490; The " Are
We ante Barcelones, 7

Wheat., #6; The Monta

Ue Hey age a

$52 es
Pet., tis. The Hernunds,
3 Wall., ; 8.
72 U. 8, 62;
The Watchful, 73 U. S.,
91; e Three Friends,
166 U. 8. 1, 52, 78 Fed.
Rep., 176. The Chap-
man, 4 Sawyer, 501, 5
Fed. Cas., 471;
Florida, 4 Hens 452, a
Fed. Cag., 32
2 Paine, 652,
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
». Steele, 3 Wash., 464,
21 Fed. Cas., 583; U. 8. 0.
Skinner, 1 Brun. Col.
Cas., 446; 2 Wheeler’s
Crim. Cases, 232, 27 Fed.
Cas., 1193; U. 8. 2. The

CRIMES.—Cu. 2.

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 juris-
diction 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

Mary see 18 Fed.
Rep., 529; U. 8. ». Two

forfeited; one-half to the use of the informer
Hundred ‘and Fourteen
Boxes, 20 Fed. See 50;

and the other half to the use of the United
fee dren, pcates.
Cas., 1 aaa Gity of Mexico, 24 Fed. Rep., 33, 25 Fed. Rep., 925; The City of Mexcio, 28 Fed.
Rep., 14 8, 32 Fed. Rep., 105; The Carondelet a Fed. Rep.. , 799: The Conserva, 38 Fed. Ae: 431;
U.S. 0. The Resolute, 40 Fed. Rep., 643; U. The Robert and Minnie, 47 Fed. Rep. "Ss.

Trumbull, 48 Fed. Rep., 99; The ‘Ttata, 56 Fed Rep., 505, 49 Fed. Rep., 648; The P ieiade 8s
Fed. Rep., 760, The Huascar, 3 Wharton's Dig., 474.

Teens were ot sas Sec. 12. Whoever, within the territory or

B.S. 5.5285, jurisdiction of the United States, increases
The Alerta ». Moran, OF Augments, or procures to be increased or
Croranch, 35%: 542 augmented, or knowingly is concerned in in-
26 Fed. Cas, 10 creasing 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 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 cali-
ber, 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.

Augmenting force of
CRIMES.—Cnh. 2. 611

Sec. 13. Whoever, within the territory or acne poole tps
jurisdiction of the United States, begins, or M™! the United States
sets on foot, or provides or prepares the _2:5:®5%é.
means for, any military expedition or enter- wheas* 1%4,)0"S 2
prise, to be carried on from thence against Hallo, {64 & 8. a
the territory or dominions of any foreign %:,'#5,U,8. x,Witere
prince or state, or of any colony, district, or Friends 106 6 Thee
people, with whom the United States are RP pit “Ncite i
at peace, shall be fined not more than three Pet es, ae ir fed
thousand dollars and imprisoned not more dey 1 Band care

Grad Jury, 5 Blatc..
than three years. 56, 30 Fed. Cas., 1017;

2 oleae, ts a vee. o 1018; 5 McLean, 249, 30 Fed. Cas., 1020; 5 Melon 306, 30 Fed. Cas.,
1021; 4 Wkly. L. Gaz., 214, 30 Fed. Cas., 1023; 2 Curt., 630, 30 Fed. Cas., 1024; U.S. ». Rand, 17
Fed. ’Rep., 142; ‘City of Mesteo, 32 Fed. Rep., 105; The Carondelet, 37 e Rep., 799; U. 8. 9
The Resolute, 40 Fed. Rep., 543; U. 8. v. The Robert and Minnie,47 Fed. p..84U. 8.0. Pru
bull, 48 Fed. Rep., 99; The ttata, 46 Fed. Rep., 646; U.S. ». Ybanez, 53 eae Hep, 636; CS Roe
% Gonzales, 6 67 Fed. Rep., 351; U. 8. 0. Pena, 60 Fed. Rep., 983; U.S. 0. Hu d. Rep.
972, 75 Fed. Rep., 267; U. 8. 9. O'Brien, 75 Fed. Rep., 900; U. 8.0. Hart, 78 Rea’ Re et 368, Th
Fed. Rep., 724; U. 8.x, Nunez, 82 Fed. Rep. 599; Hart ». U. S., 84 Fed. hee 799; U. 8.0
Murphy, 84 Fed. Rep., 609. The Madagascar Expedition, 29 Am. L. Rev., 53

Sec. 14. The district courts shall take ,.Uaforcement, of fore-
cognizance of all complaints, by whomsoever
instituted, in cases of captures made within *® 5» 587
the waters of the United States, or within a © gtoughton ». Dimick,
marine league of the coasts or shores thereof. 352 3. 6,777
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 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 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
612 CRIMES.—Cu. 2.

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 carry-
ing 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.

ee foreign == Sec 15. It shall be lawful for the Presi-
—__—_——— dent, or such person as he shall empower for
cab aeia 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.

ponimed yewels to give = Sec. 16. The owners or consignees of
every armed vessel sailing out of the ports of,
or under the jurisdiction of, the United

Quin, 6 States, belonging wholly or in part to citizens
Pet hs . "gut thereof, shall, before clearing out the same,
Ui 27 Fed Cas, 680 give bond to the United States, with sufficient
sureties, in double the amount of the value of the vessel
and cargo on board, including 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.

ene en 17 The several collectors of the

customs shall detain any vessel manifestly
built for warlike purposes, and about to
or ett +, Gonsales, depart the United States, or any place

ue 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 inten-
ded 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

R. 8., 8. 5289.

R. 8., 8. 5290.
CRIMES.—Cu. 2-3. 613

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.

Sec. 18. The provisions of this chapter gcomruction of this
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 marque, 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 prevent
the prosecution or punishment of treason, or of any piracy
defined by the laws of the United States.

R. 8., 8. 5291.

CHAPTER THREE.

OFFENSES AGAINST THE ELECTIVE FRANCHISE AND CIVIL
RIGHTS OF CITIZENS.

Sec. Sec.

19. Conspiracy to injure, etc., citi-
zens 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 offi-
cers, etc., of Army or Navy.

Sec. 19. If two or more persons conspire

24. Officers of Army or Navy pre-
scribing qualifications of vot-
ers.

25. Officers, etc., of Army or Navy
interfering with officers of
election, etc.

26. Persons disqualified from hold-
ing office; when soldiers, etc.
may vote.

Conspiracy to injure,
ete., citizens in the ex-

to injure, oppress, threaten, or intimidate any “of ‘vil rehts.
citizen in the free exercise or enjoyment of _*5+* 5608.
any right or privilege secured to him by the 55,8. 4.4% Qu
614 CRIMES.—Cn. 3.

shank et al. 2, U. &; Constitution or laws of the United States, or

Fed. Cos. 707; Stu- hecause of his having so exercised the same,

is te laeven 108 or if two or more persons go in disguise on the

reine, 18 dol’ 106. highway, or on the premises of another, with

Une” 120 y's, a intent to prevent or hinder his free exercise or

Neal's. Delaware, 103 enioyment of any right or privilege so se-
Hi 100-0, 8 ent cured, they shall be fined not more than five

Vartecugh 16 U's thousand dollars and imprisoned not more

ie Fea. Rep, wi aig than ten years, and shall, moreover, be there-

Frank’ 133 0 Ses, after ineligible to any office, or place of honor,
He niin ¢ oe new, 8 profit, or trust created by the Constitution
Uris 3a et or laws of the United States.

U.5., 1440.8. 263; Brown t. U.8., 150 U. 8., 93; In re Quarles, 158 U. 8., 532; Motes ». U. 5.,

178 U.§., 458; Hodges 9. U. 8., 203 U. §., 1; Rakes ». U. 8., 212 U. 8., 55; Slaughter House Case,

1 Woods, "21, 15 F . Cas., 649, 16 Wall., 36; Seeley ». Knox, 2 Woods, 368, 21 Fed. Cas., 1014;

U.S. 0. Butler, 1 Hughes, 457, 25 Fed. Cas., 213; U.S. 2. Butler, 4 Hughes, 512, 25 Fed. Cas., 226;

U.S. o. Degrieff, 16 Blatch., 20, 25 Fed. Cas., 799; U.S8. 0. Mitchel, 1 Hughes, 439; 26 Fed.’ Cas.,

1283; Le Grand 2. U. §., 12 Fed. Rep., 577; In re Baldwin, 27 Fed. Rep., 1 U.8. ws Lancaster,

44 Fed. Re p., 885; U. 8. ». Sanges, 48 Fed. Rep., 78; U. 8. ». Patrick, Oe Re Hen, 356; U.S. 2.

Patrick, 54 Fed. Rep., 338; Haynes v. U. S., 101 Fed. Rep., 817; U. 8. ». Davis, M103 Fed. Rep..

457; Mullen v. U. 8., 106 Fed. ob 892; Davis ». U. 8., 107 Fed. Rep., 753; j Karem 2, U.8., 121

Fed. Rep., 250: Morris . U. S., 25 Fed. Rep., 322; McKenna ». U.S., 127 Fed. Rep., 88 3 U.8. 9.

Eberhart, 127 Fed. Rep., 254; wie Moore, 129 Fed. Rep., 630; U. Be . Powell, 151 Fed. Rep.,

648; Smith v. U. 8., 157 Fed. Rep., 721; U. 8, ». Mason, 213 U. 8., 1

Depriving persons of

civil rights under color «= DEC. 20. Whoever, under color of any
of tere iam, law, statute, ordinance, regulation, or cus-
. $2550 ____ tom, willfully subjects, or causes to be sub-
ion ote y Cases, jected, any inhabitant of any State, Terri-

Blackbora, 8, OH.) tory, or District to the deprivation of any

abe: He Parrott, 1 Fed. rights, privileges, or immunities secured or
tin, 10 Fed. Hep 730;

Le’ Grands, Ue 8. 13 protected by the Constitution and laws of the
vee igloo, 20 5 United States, or to different punishments,
ne te 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.

peerpiracy to prevent = Sec. 21. If two or more persons in any

ar fice from performing State, Territory, or District conspire to pre-
eee) ae vent, by force, intimidation, or threat, any
_%8.# 5518 person from accepting or holding any office,
Que” U- & 15° trust, or place of confidence under the United

Fel. Rp. oh” * States, or from discharging any duties there-
of; 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
CRIMES.—Cu. 3. 615

performed, or to injure him in his person or property 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 per-
sons shall be fined not more thaa five thousand dollars, or
imprisoned not more than six years, or both.

Sec. 22. Every officer of the Army or ,,vmanful, presence a
Navy, or other person in the civil, military, “Ris...s508
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. -

Sec. 23. Every officer or other person in ,yintimidation of voters
the military or naval service of the United 4%:

States who, by force, threat, intimidation, ®5+*
order, advice, or otherwise, prevents or attempts to pre-
vent, any qualified voter of any State from freely exer-
cising 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.

Sec. 24. Every officer of the Army or x ies,of Army or
Navy who prescribes or fixes, or attempts to ‘stone of voters.
prescribe or fix, whether by proclamation, ®®* 530
order, or otherwise, the qualifications of voters at any elec-
tion in any State shall be punished as provided in the pre-
ceding section.

Src. 25. Every officer or other person in 4, 9P&%, tip of Amy
the military or naval service of the United cer of election, ete. _
States who, by force, threat, intimidation, *® & * 53.
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 regulations 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 punished as provided in section twenty-three.
616 CRIMES.—Cu. 3+.

Persone i

freee eee, Gaaualifed ~~ SEc. 26. Every person convicted of any
soldiers, ete, may vote. offense defined in the four preceding sections

Beem ESE 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 there-
in shall be construed to prevent any officer, soldier, sailor,
or marine from exercising the right of suffrage in any elec-
tion district to which he may belong, if otherwise qualified
according to the laws of the State in which he offers to
vote.

CHAPTER FOUR.

OFFENSES AGAINST THE OPERATIONS OF THE

 

GOVERNMENT.

Sec. Sec.

27. Forgery of letters patent. 47. Embezzling, stealing, etc., pub-

28. Forging bids, public records, etc. lic property.

29. Forging deeds, powers of attor- 48. Receivers, etc., of stolen public
ney, etc. property.

30. Having forged papers in posses- 49. Timber depredations on public
sion. lands.

31. False acknowledgments. 50. Timber, etc., depredations on

32. Falsely pretending to be United Indian and other reserva-
States officer. tions.

33. False personation of holder of 51. Boxing, etc., timber on public
public stock. lands for turpentine, etc.

34. False demand on fraudulent 52. Setting fire to timber on public
power of attorney. lands.

35. Making or presenting false 53. Failing to extinguish fires.
claims. 54. Fines to be paid intoschool

36. Embezzling arms, stores, etc. funds.

37. Conspiracy to commit offense 55. Trespassing on Bull Run Na-
against the United States; all tional Forest, Oregon.
parties liable for acts of one. 56. Breaking fence or gate inclosing

38. Delaying or defrauding captor reserved lands, or driving or
or claimant, etc., of prize permitting live stock to enter
property. ; upon.

39. Bribery of United States officer. 57. Injuring or removing posts or

40. bag tae taking or using monuments.
papers relating to claims. 58. Interrupting surveys

41. Persons interested not to act as ie :
agents of the Government. a ae se prevent bids at

42. Enticing desertions from the 60. Injuri ance.
military or naval service. . Injuries to United States tele-

43. Enticing away workmen. graph, etc., lines.

44. Injuries to fortifications, har- 61. Counterfeiting weather forecast.
bor defenses, etc. 62. Interfering with employees of

45. Unlawfully entering upon mili- Bureau of Animal Industry.
tary reservation, fort, etc. 63. Forgery of certificate of entry.

46. Robbery or larceny of personal 64. Concealment or destruction of
property of the United States. invoices, etc.
CRIMES.—Cnu. 4.

617

States, etc., certificate of citi-
False personation, etc., in pro-

Using false certificate of citi-
zenship, or denying citizen-

Using false certificate, etc., as
evidence of right to vote, etc.

Taking false oath in naturaliza-

person intoxicated to go on

Corporations, etc., not to con-
tribute money for political

Hunting birds, or taking their
eggs from breeding grounds,

Sec. Sec.
65. Resisting revenue officer; rescu-
ing or destroying seized prop- zenship.
erty, etc. 76.
66. Falsely assuming to be a reve- curing naturalization.
nue officer. 77.
67. Offering presents to revenue offi-
cer. ship, etc.
68. Admitting merchandise to en- 78.
try for less than legal duty.
69. Securing entry of merchandise 79. Falsely claiming citizenship.
by false samples, etc. 80.
70. False certification by consular tion proceedings.
officer. — 81. Provisions applicable to all
71. aap: F hg ee ae from _ courts of naturalization.
custody of revenue officer. ss . .
72. Forging or altering ship’s papers 82. Shanghaiing and falsly inducing
or custom-house documents. ap:
73. Forging military bounty-land vessel, paohibitesds
warrant, etc. 83.
74. Forging, etc., certificate of citi- d
zenship. elections, etc.
75. Engraving, etc., plate for print- 84,
ing, or photographing, sell-
ing, or biinging into United prohibited.

 

Sec. 27. Whoever
forge, counterfeit, or alter any letters patent
granted or purporting to have been granted
by the President of the United States; or
whoever shall pass, utter, or publish, or at-

Forgery of letters
a

shall falsely make petent.

R.S., 8. 5416.

U.S... Irwin, 5 Me-
ion 178, 26 Fed. Cas.,

tempt to pass, utter, or publish as genuine, any such forged,
counterfeited, or falsely altered letters patent, knowing the
same to be forged, counterfeited, or falsely altered, shall be
fined not more than five thousand dollars and imprisoned

not more than ten years.

Sec. 28. Whoever shall falsely make,
alter, forge, or counterfeit, or cause or procure
to be falsely made, altered, forged, or counter-
feited, or willingly aid, or assist in the false
making, altering, forging, or counterfeiting,
any bond, bid, proposal, contract, guarantee,
security, official bond, public record, affidavit,
or other writing for the purpose of defrauding

the United States; or shall utter or publish as ¥,,5-,°
true, or cause to be uttered or published as 7s

true, or have in his possession with the intent
to utter or publish as true, any such false,
forged, altered or counterfeited bond, bid,

Forging bond,
public record, eto.

R. S., ss. 5418, 6479.

U. S. v Hall, 131 U.
8., 50; Cross ». North
Carolina, 182 U. 8., 181;
U. §. » Barney, 5
Blatch,, 294, 24 Fed.
Cas., 1011; U. 8. ». Law-
rence, 18 Blatch., 211,
26 Fed. Cas., 878; U. S.
2. Wentworth, 11 Fed.
Rep., 52; U.S. «. Hough-
ton, 14 Fed. Rep., 544;

. 2% Tod, 25 Fed.
Rep., 815; U. 8. 9. Barn-
hart, 33 Fed. Rep., 459;
J. 8. Crecilius, 34
Gowdy "it Fed.” Rep

; . Rep.
332; U.S. ». Lehman’
39 i fee ue 8
. Albert, . Rep.
552; U. 8. ». Van Leu,

bid,
618 CRIMES.—Cu. 4.

2 Fed. Rep.,_6
iaton. U. 8., 88 Fed.
Rep., 253; U. Bs 0. Bint
ing, 82 Fed. Rep.. 883; : :
U.S 4 McKinley, 127 for the purpose of defrauding the United

proposal, contract, guarantee, security, official
bond, public record, affidavit or other writing,

Fed. Rep., 166, 168

Net SaUBecee States; knowing the same to be false, forged,
gron, 18 N.W-Rep, 551; altered, or counterfeited; or shall transmit to,
Sa 19 4. G or present, at, or cause or procure to be trans-

mitted to, or presented at, the office of any
officer of the United States, any such false, forged, altered,
or counterfeited bond, bid, proposal, contract, guarantee,
security, official bond, public record, affidavit, or other
writing, knowing the same to be false, forged, altered or
counterfeited, for the purpose of defrauding the United
States, shall be fined not more than one thousand dollars,

or impriosned not more than ten years, or both.

Forging ein powers
of attorney, ete.

R. 8., 8. 5421.

U. 8. » Btaats, 8
Hovw., 41; U.S. 2. Bar-
ney, 5 Blatch., 294, 24
Fed. Cas, 1011; U. 8.
® Bickford, 4 Blatch.,
337, 24 Fed. Cas., 1144;
U._ 8. Ki ohnstamm,
5 Blateh., 222, 26 Fed.
Cas., 813; U. 8. 0

U. 8, apt Fed.
485; U. 8. 0 Spaulding,
18 N. W. Rep., 357.

Sec. 29. Whoever shall falsely make,
alter, forge, or counterfeit, or cause or pro-
cure to be falsely made, altered, forged, or
counterfeited, or willingly aid or assist in the
false making, altering, forging, or counter-
feiting, any deed, power of attorney, order,

"Reese, CeTtificate, receipt, contract, or other writing,
: for the purpose of obtaining or receiving, or
* of enabling any other person, either directly
Rep, OF indirectly, to obtain or receive from the
35 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,

ed. altered, or counterfeited deed, power of at-

ony, order, certificate, receipt, contract,
or other writing, with intent to defraud the
- United States, knowing the same to be false,

aa 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 rela-
tion to, any account or claim, with intent to defraud the
United States, knowing the same to be false, altered, forged,
CRIMES.—Ch. 4. 619

or counterfeited, shall be fined not more than one thousand
dollars and imprisoned not more than ten years.

Src. 30. Whoever, knowingly and with ;,Zaving,foreed papers

intent to defraud the United States, shall “Risjvtin
have in his possession any false, altered,

forged, or counterfeited deed, power of attorney, order,
certificate, receipt, contract, or other writing, for the pur-
pose 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 years, or both.

Sec. 31. Whoever, being an officer author- ,,Z3s° *°knewleds-

ized to administer oaths or to take and certify
acknowledgments, shall knowingly make any false acknowl-
edgment, certificate, or statement concerning the appearance
before him or the taking of an oath or affirmation by any
person with respect to any proposal, contract, bond, under-
taking, 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 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.

Sec. 32. Whoever, with intent to defraud ,. “ain, Beenie, 2°
either the United States or any person, shall “Rgossus.
falsely assume or pretend to be an officer or pitt crt ey
employee acting under the authority of the SE _
United States, or any department, or any ru tp Gres?

officer of the Government thereof, and shall Bdere 55, Fed. Rep.

take upon himself to act as such, or shall in F,3es ©; U; S-

such pretended character demand or obtain £777 50, 8 & Barn
from any person or from the United States, i j,,7- & 169 Fet
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.
620 CRIMES.—Cnx. 4.

aap of
lic atocks.

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 per-
sonation, shall transfer or endeavor to transfer such public
stock or any part tnereof, 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, pension, prize money, wages, or other
debt, shall be fined not more than five thousand dollars
and imprisoned not more than ten years.

False demand or frau-
dulent power of attorney.

iam o!

R. B., 8. 64365.

Sec. 34. Whoever shall knowingly or
fraudulently demand or endeavor to obtain
any share or sum in the public stocks of the

U. 8 » Logan, 105 United States, or to have any part thereof
Rese Bony oes 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 counter-
feited power of attorney, authority, or instrument, shall be

fined not more than five thousand dollars and imprisoned
not more than ten years.
Making or present-

R. 8., 8. 6436.

ng false claims. Sec. 35. Whoever shall make or cause to
R.8., 6. 5438, be made, or present or cause to be presented,
1 ioaiey a," for payment or approval, to or by any per-
U.8. ». Perin, 131 SOD or Officer in the civil, military, or naval
Bike Tt service of the United States, any claim upon

8 ‘abam

Ray iss; tate auc
, one v.

itt U8, dington

tea ot, 8., 301;

Es pars Shaffenburg,
271, 21 Fed. a
1144; U. 8.0. eee

Int,

Fel, Cas., Ti; v8
ata Cranch

CC, 28, 28 Fed. Cas.

We pp te Gad
ia
in,

v. 8. L Griswold, Fi

Bee Mal, ed
Rep., 8,

or against the Government of the United

zon States, or any department or officer thereof,

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, shall make or use,
or cause to be made or used, any false bill,
receipt, voucher, roll, account, claim, cer-
tificate, affidavit, or deposition, knowing the
same to contain any fraudulent or fictitious
statement or entry; or whoever shall enter
into any agreement, combination, or con-
CRIMES.—Cnu. 4.

spiracy 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 fraudu-
lent claim; or whoever, having charge, posses-

sion, 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 7

conceal such money or other property, shall 34
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 cer-
tificate or took a receipt; or whoever, being
authorized to make or deliver any certificate,
voucher, receipt, or other paper certifying 5
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 4
intent to defraud the United States, shall be
fined not more than five thousand dollars, or
imprisoned not more than five years, or

ac
a

Rep. 793: U. 8.
a Russell,

62; U. 8. »
Reicher, 32 Fed. Rep.,
. S. o. Jones, 32
Fed. Reng 482; U.S. ».
Route, Fed. Rep.,
6; U. 2 v. Gowdy, 3
fel Rep., 332; U. §. ».
Wallace, 40 Fed. Rep.

Strobach, "48 Fed.
902; U. 8. a Al
Fed. Rep., 733; U. S
Van ey 62 Fed.
Rep., 62; U. S. 0. Hart-
man, 5 Fed. Bap, 490;
Rhodes ». U. S., Fed.
Hep, 740; Dimmic!
U.S, 116 Fed. Hap 625
U. &. ». Lair, 118 Fed.
Rep., 985, Pooler ». U. o
127 Fed. Rep
Bridgeman »,
Fed. Rep., 577; U "he
Hart, 146 Fed. Rep. 202;
U. §._» Michael, 153
Fed. Rep., 609; Greene
he ue 8., 154 Fed, Rep.,
US.» Koplik,
135 "Fed. Rep., 919; U. 8.
2. Smith, 156 "Fed. Rep.,
859; In re Peraltareavis,
41 Pac. Rep., 538; 18
A. G. Op., 72.

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 prop-
erty, whether furnished to the soldier, sailor, officer, or
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 thaa two years.

Sec. 36. Whoever shall steal, embezzle, ,2mb¢etine 2™*
or knowingly apply to his own use, or un-

R. 8. 8. 5439.
lawfully sell, convey, or dispose of, any “Johnson o. Sayre,
ordnance, arms, ammunition, clothing, sub- $8.0; $30) 957-44
sistence, stores, money, or other property of ** cas lee U.S

Rep., 26. :

the United States, furnished or to be used for
622

CRIMES.—Cu. 4.

the military or naval service, shall be punished as pre-
scribed in the preceding section.

sonepirany’ to com-
mit offense against the
United States; all liable
for acts of one,

R. 8., 8, 5440,
17 May, 1879, 21 Stat.
L., 4, ¢. 8; 1 Supp., 264.
Ex parte Carstendick,
93 U. 8., 396; U. 8. ».
Hirsch, i00 U. 8., 93;
U. 8. 2. Chouteau, aoe
U. 8, 603; U.
Britton, 108 U. 8., i192:
Mackin ». U. 8. 11
U.8., ae U. 8. 9. Hess,
i U8. 483; Re Coy,
1 Fed. Rep. 794, 127
fa 8., "U. 8.

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 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.

Perrin, ui. 8., 55; vu 'B. ». Barber, 140 U. 8., 177, U. 8. ». Logan, 144 U. 8., 263, Pettibone ».

U.S., 148 U. _ 197; "Ex parte Lennon 150 U. 8, 303; Dealy ». U. a 152 U. 8., 539; Vannon 2.
U,S., 156 U. 8., 464: Stokes ». U. 8., 157 U. 8., 187; Clune 0. U. 8., 159 U.8., 590: Franee ». U. 8.,
164 U. 8., 678; Williamson ». U. 8., "207 U.S. 425; U.S. 2. Keitel, 211 U. 8., 370; U. 8. ». Biggs,
211 U.8., 507; Crawford ». U. 8., 212 U.S. 183; Re Callicot, 8 Int. Rev. Rec., 169, 4 Fed. Cas.,
1075; U. 5, v. Bayer, 4 Dillon, 407, 24 Fed. Cas. 1046; U. 8.0. Boyden, 1 Lowell, 266, %/ Fed.
Cas., 1213; U.S. 0. Craf ‘ton, 4 Dillon, 145, 25 Fed. Cas., 681, U. 8. +. DeGrieff, 16 Blatch., 20, 25
Fed. Cas., 799; U.S. ». Denee, 3 Woods, 47, 25 Fed. Cas., 818; U. 8. ». Donau, 11 Blatch, 168,
25 Fed. Cas., 890; te S. ». Goldberg, 7 Biss., 175, 25 Fed. Cas., 1342; U.S. ». Hammond, 2 Woods,
197, 26 Fed. Cas., 99; U. 8. v. McDonald, 3 Dillon, 543, 26 Fed. Cas., 1085; U. 8. ». ‘McKee, 4
Dilfon, 128, 26 Fed. Cas., 1116; U. 8. ». Martin, 4 Cliff., 156, 26 Fed. Cas., 1175: U.8. ». Rindskopf,
6 Biss., 250, 27 Fed. Caa., 813; U. 8. 9. Nunnemacher, 7 ‘Biss., 111, 27 Fed. Cas., 197; U. 8. ».
Smith, 9 Bond, 323, 27 Fed. Caa., 1144; U. 8. ». Stevens, 2 Haskell, 164, 27 Fed. Cas., 1312; U.S.
», Walsh, 5 Dillon, 58, 28 Fed. Cas. ., 304; U. 8. o. Sacia, 2 Fed. Rep., 754; Mussel Slough case, 5
Fed. Rep., 680; U.S. 5. perahe. 7 Fed. Rep., 715; U. 8. ». Burgess, 9 Fed. Rep., 896; U.S. ».
aeons 17 Fed. Rep., 145; U. 8. ». Gordon, 22 Fed. Rep., 250; U. 8. ». Payne, 22 Fed. Rep., 426;
U.S. ». Kane, 23 Fed. Rep., 748; U8. 4. Johnson, 26 Fed. Rep. , 682; Ree 27 Fed. Hee, ae
Uso Frisbie, 28 Fed. Rep., 808; U. 8. ». Therm peat 29 Fed. Rep., 86; U. 8. ». Wooten, 29
Rep., 702; U. Be 2 Thompson, 81 Fed. Rep., 331; U. 8. ». Reichert, 32 Fed. Rep., 142; U. ce
Owen, 32 Fed. reps 5384; U. 8. 2. Tees 35 Fed. Rep., 411; U.S. 0. Hine, ‘36 Fed. Rep,
890; U. S. ». Smith, 40 Fed. “Rep., 755; U. 8. 2. 1 Stevens, 44 Fed. Rep., 132; U. 8. ». Gardner, 42
Fed. Rep., 829; U.'S. ». Lancaster, 44 Fed. Rep., 896: Re Newton, 48 Fed. Rep., 218; U. 8. 9.
Adler, 40 Fed. Rev? 736; U. 8. 2. Newton, 52 Fed. Rep., 275; Toledo, &c., R. Co., 0. Penn. Co.,
54 Fed. Rep., 730; ‘Waterhouse ». Comer, 55 Fed. Rep., 150; ee = ?. ‘Howe, 56 pear Een, 21;
In re Benson, 58 Fed. Rep., ae U.S. 2. Wilson, 60 Fed. Rep., 8 90; U. 8. ». Van Leuven, 62 Fed.
Rep., 62; Thomas ». Ry. Co., 62 Fed. Rep. , 803; Re Phelan, 62 Fed. Rep.. , 803; Charge to Grand
Jury, 62 Fed. Rep., 828, 840; U. 8. ». Del ; 63 Fed. Rep. 436; U.S8.0 arrett, 65 Fed. Rep., 62:
U.S. ». Cassidy, 67 F Fed. Rep., 698; U.S. ». . Benson, 70 Fed. Re Rep., 591; U. 8. ». McCord, 72 Fed.
Rep., “159; U. 8. ». Bunting 82 Fed. Rep., 883; U. 8. 0. Taffe, 86 Fed. Re ny 113; Berkowitz ».
U.S., 93 Fed. Rep., 452; U. 8. ». Sweeney, 95 Fed. Rep., 434; pailley 3. U. 8. 106 Fed. Rep., 896;
Gantt 0. U. 8., 108, Fed. Rep., 61; Wrig t 2, U. 8. 108 Fed. Rep., 80 5; U. 8.0. Greene, 113 Fed.
Rep., 683; 115 Fed. Rep., 343; McKnight ». U.8., 115 Fed. Rep., 972; U.S. yetetel a Fed.
Rep., 642: AU e e Chat 121 Fed. Rep., 190; U. 8. ». Curley, 122 Fed. Rep. . 316; U.

122 Fed. Re; ep. $64; U8. 2. McKinley, 126 Fed. Rep., 242; U.S. a Dietrich, 126 ipod Rep. 664;
Lebman ». U.§., tor. Fea Rep. 42; Conrad 0. U. 8., 127 Fed. 798; Radford "1 , 129
Bet ck yeh Curley ». U.8., 30 Fed. Rep. 1; Scott », U. 8., Bo ed. He aoe
54

Rep., 187; U. ‘g a Radford, ‘131 Fed. Re Gee: 3 78: ma 8. ca sg 150 ed. Rep.,

545; Olson 2. U. 1133 3 Fed. Rep., 849; M'Gregor ». U.S., 134 187; U. 8. ». Stone,

135 Fed, Rep., 392; U. 8. ». Scott, 130 Fed, Rep., 697; U. . * ‘etl a Hi Fed. Rep., 666; U.S.
. ae 142 Fed. Rep. , 983; Wilder ». ue 8., 1 3 Fed. Re U.S. ». Thomas, 145 Fed. Re
bene Uz. . 145 5 Fed. Rep., 81 U. 8. 0. a is "Fed. Re Rep., 803; Robens ». U US

i4 6 Fed. Rep., 978; U. 8.0. Bradford, 148 Fed. Rep., 413; U. 8. ». Brace, 149 Fed. Rep., 874:

U.S. Richards, 149 Fed. Rep., 443; U.8. 9. Burkett 150 Fed. Rep., 208; Bradford ». U. 8, 152

Fed, Rep. 6 Stearns v, U. 8., 152 U. 8., 900; U. 8. 2. Peeke, 153 Fed. Rep., 166; Greene 2.

pon, Rep, 401; Ware 3 U, 8., 154 F Pen. Hep 677; Thomas 0. v- 8., 156'Fed..

v. & i sat "157 Fed. Rep. 264; U. 8. 0. Keitel, 157 Fed. Rep., 398; U.S. 9. Robbins, 1B Fea
hanson U. §., 158 Fed. Rep., 69; U. 8. 9. Lonabaugh, 158 Fed. Rep., 314; U. 8.

Bink p., 431; U. 8, 0, Comstock, 162 Fed, Rep., 415; Jones ». U. 8., 162 Fed. Rep.

a7 Us 8 2. «Wal 16s Fed op Rep., 313; U. 8. 2. ; Hass, 163 Fed, Rep, 008; U. 8.0. Clark, 164 Fed.

v, Grodson, 1 to , 164 F is
Bent eo 8. 165 Fed. Rep. 172 vol Rap it, U 3. = ieee

ing captor or caiman, SEC. 38. Whoever shall willfully do, or

ete., of prize property.

R. 8., 6. 5441.

aid or advise in the doing, of any act relating
to the bringing in, custody, preservation, sale,
CRIMES.—Cu. 4. 623

or other disposition of any property captured as prize,
or relating to any documents 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 property, shall be fined not more than
ten thousand dollars, or imprisoned not more than five
years, or both. ;
Sec. 39. Whoever shall promise, offer, or g2ibery. of United
give, or cause or procure to be promised, ggasi.
offered, or given, any money or other thing “&. gs. », Worrall, 2

of value, or shall make or tender any contract, 22",,5% 2 oe

undertaking, obligation, gratuity, or security 5," gs°0" ait, Bed.

for the payment of money, or for the delivery % ¢” Fed. Re aoe

or conveyance of anything of value, to any 6) Fea. "Rep. a ie

officer of the United States, or to any person i} 7a *, Bove, ©
acting for or on behalf of the United States Rim i” ght
in any official function, under or by authority Grech, 186 Fe ve
of any department or office of the Govern- 15 Fed Rep. 121.

ment 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 pro-
ceeding 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 offered, promised, given,
made, or tendered, and imprisoned not more than three years.

Sec. 40. Whoever shall take and carry ,qvoavfully taking or
away, without authority from the United “™.
States, from the place where it has been filed, a... 5454,
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
624 CRIMES.—Cu. 4.

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 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 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.

to eetons interested not ~~ Sec. 41. No officer or agent of any cor-
See poration, joint stock company, or association,

Hebe BAe and no member or agent of any firm, or per-
son directly or indirectly interested in the pecuniary profits
or contracts of such corporation, joint stock company, asso-
ciation, 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.

Ent ;
frow ‘the Saittey se SEC. 42. Whoever shall entice or procure,

a or attempt or endeavor to entice or procure,
12a ge A877 19 Bat any soldier in the military service, or any
Oe cae seaman or other person in the naval service
Uy Be, U. 8 of the United States, or who has been re-

*™ cruited 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 soldier, seaman,

or other person on the demand of any officer authorized to
CRIMES.—Cnu. 4. 625

receive him, shall be imprisoned not more than three years
and fined not more than two thousand dollars.

Sec. 43. Whoever shall procure or entice ,Zace ery work-
any artificer or workman retained or em- ————————
ployed in any arsenal or armory, to depart ® 5+» 1668.
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 work-
man or artificer, during the continuance of such engagement,
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.

Sec. 44. Whoever shall willfully trespass 22" 2 fortiBea-

upon, injure, or destroy any of the works or “*

property or material of any submarine mine 7 yyy, 18098, 30 Stat.
or torpedo, or fortification or harbor-defense £71458 57 & 15 2
system owned or constructed or in process of

construction by the United States, or shall willfully interfere
with the operation or use of any such submarine mine, tor-
pedo, fortification, or harbor-defense system, shall be fined
not more than five thousand dollars, or imprisoned not more

than five years, or both.

Sec. 45. Whoever shall go upon any mili- ,,volanfully entering
tary reservation, army post, fort, or arsenal, #° fr ete
for any purpose prohibited by law or military regulation
made in pursuance of law, or whoever shall reenter or be
found within any such reservation, post, fort, or arsenal, after
having been removed therefrom or ordered not to reenter
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.

Sec. 46. Whoever shall rob another of ,¢ebbery, or, larceny
any kind or description of personal property ‘Be United States.
belonging to the United States, or shall feloni- x. g,.. sass.
ously take and carry away the same, shall be ———-——-——_
fined not more than five thousand dollars, y72lMo3: %5, Sy01
or imprisoned not more than ten years, or tO. Sy 188 Fe Sellee

both.

40
626

Embezzling, stealing,
ete., public property.

3 Mar., 1875, 18 Stat.

L., 479, c. 144, 8. 1; 1

Supp., 88

Moore ». U. 8., 160
U. 8., 268; Faust ». U. 8.,
163 U. 8., 452; U. 8. «.
Gilbert, 17 Int. Rev.
Rec., 54, 25 Fed. Cas.,
1318; U. a v eeceate
30 Fed. Re

CRIMES.—Cnu. 4.

Sec. 47. 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.

U..8.
0 Bornean oh fod, “Rep., 257; U. 8. v. Jones, 69 Fed. Rep., 973; Dimmick 9, U. 8., 135 Fed.

Rep., 257.

Receivers, etc. of
stolen public property.

3 Mar., 1875, 18 Stat.
L., 470, ¢. 144, 8, 2; 1
Supp., 88

Kerby ». U. 8, 174
U. 8, 47; U. 8.» De
pete 6 Biss, 358, 25
Fed. Cas., 796; U. 8. 2
Montgomery, 3 Sawy.
544, 26 Fed. Cas., 1206.

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 thou-
sand dollars, or imprisoned not more than five years or both;
and such person may be tried either before or after the con-
viction of the principal offender.

Timber depredations
on public lands.

3 June, 1878, 20 Stat.
L., 90, ¢. 151, 8. 4; 1
Supp., 168.

4 ‘Aug., 1892, 27 Bist,
L., at e. 378, 8. 2;
Supp., 66

Railroad Co. ». U. 8.,
149 U. 8., 778; Stone v.
U. &., 159 U. §., 491;
U. 8. 0 Nelson, 27 Fed.
Cas., 86; The Timber
Cases, 11' Fed, Rep., 8
U. 8. 6. Smith, 11 ‘et
487; U. 8

‘ed

Benjamin, 21 Fed. Rep.,
285; U.8. ». Leatherbury,
27 Fed. Hep oN —
Fed. Rep.

Ball, 31 Tied ven, G07;

he ae ae 32 Fed.

Hep, gt 88 Fed. far
812; Railroad Co. o.
U. 8, 40 Fed. Rep. 419;
U. Bo Garretson
Fed. Rep., OB :
Kankapot, 8 red Rep.,

. & 2% Reder, 69
Fei Rep., 965; U. 8. 9

Sec. 49. Whoever shall cut, or cause or
procure to be cut, or shall wantonly destroy,
or cause to be wantonly destroyed, any tim-
ber 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, di-

rector, or agent of any railroad, shall know-

. ingly 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 sec-
tion shall prevent any miner or agriculturalist
from clearing his land in the ordinary work-
ing of his mining claim, or in the preparation
of his farm for tillage, or from taking the
CRIMES.—Cnh. 4.

timber necessary to support his improve-

ments, or the taking of timber for the use of fF

the United States. And nothing in this sec-
tion shall interfere with or take away any
right or privilege under any existing law of

the: United States to cut or remove timber j,

from any public land.

Sec. 50. Whoever shall unlawfully cut,
or aid in unlawfully cutting, or shall wan-
tonly 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

627

Hacker, 73 Fed. Rep.,
292; Pine River L. Co. 9.
Improvement Co., 89
. Rep., 907; Grubbs
o. U. &., 105 Fed. Rep.,

Fed. Rep., ae Morgan
». U.8., 148 Fed. Rep.
189; Nickell ». U, 8., 187
ed. iP a  Robnett
‘ au S., d. Rep.,
; 18 ra %. eons 555.

Timber, ete., depre-
dations on Indian and
other reservations,

R. &., 3. 5388,

3 Mar., 1875, 18 Stat.
L., 381, ¢. 451, 8. 1; 1
upp., 91.

4 June, 1888, 25 Stat. v.
L., 166, c. 340; 1 Supp.,

588,
25 June, 1910, 36 Stat.
L,, 857, ¢. 431, 5. 6.

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.

Boxing, etc., timber

Sec. 51. Whoever shall cut, chip, chop, o: “public lands for
or box any tree upon any lands belonging to ‘ime
the United States, or upon any lands covered
by or embraced in any unperfected settle-
ment, 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,

4 June, 1906, 34 Stat.
208, ¢. 2571.
628

Seti fire to tim-
ber ee lands.

24 Feb., 1897, 29 Stat.
L., 504, ¢. 31, 8. 1;2
Supp., 562. ‘May,
1900, ‘31 Stat. i, 169 c.
349; 2 Supp., 1163,

CRIMES.—Cu. 4.

Sec. 52. Whoever 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 un-
attended near any timber or other inflamma-

ble material, shall be fined not more than five thousand dol-
lars, or imprisoned not more than two years, or both.

Failing to extinguish
fires.

24 Feb., 1897, 29 Stat.
L., 594, c. 313, 8. 2; 2
Supp., 562.

5 May, ‘1900, 31 Fat
L., sa c. 349, 8. 2;
Supp., 1163.

2 June, 1910, 36 Stat.
L., 857, c. 431, 8. 6.

Sec. 53. 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
2 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 im-
prisoned not more than one year, or both.

Fines to be paid into
school fund.

Sec. 54. In all cases arising under the
two preceding sections the fines collected
shall be paid into the public school fund of
the county in which the lands where the
offense was committed are situated.

24 Feb., 1897, 29 Stat.
L., ne * 318, 8. 3; 2
Sup 5 May
1900, "31 a Srat, L., 170,
e 349, s. 3, 2 Supp., 1163.

Trespassing on Bull
Run National Forest,
Oregon.

Sec. 55. 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 Portland,
State of Oregon, shall knowingly trespass upon any part of
the reserve known as Bull Run National Forest, in the Cas-
cade Mountains, in the State of Oregon, or shall enter there-
on 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, o. 1774,

Breaking fence or

se inclosing  rnerved Sec. 56. Whoever shall knowingly and
potting live tack % Unlawfully break, open, or destroy any gate,

oe APO: fence, hedge, or wall inclosing any lands of
CRIMES.—Cu. 4. 629
the United States which, in pursuance of 133s 18% 18 Stet.
any law, have been reserved or purchased by 15?>%-
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 hundred dollars, or
imprisoned not more than one year, or both: Provided, That
nothing in this section shall be construed to apply to unre-
served public lands.

Sec. 57. Whoever shall willfully destroy, j..7Tag % temov-
deface, change, or remove to another place ™™*
any section corner, quarter-section corner, OF _ 10 June, 1896, 29 Stat.
meander post, on any Government line of fig? © 398 ? SuP-
survey, or shall willfully cut down any witness
tree or any tree blazed to mark 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
imprisoned not more than six months, or both.

Sec. 58. Whoever in any manner, by MeTptine surveys.
threats or force, shall interrupt, hinder, or a.g_.. 241,
prevent the surveying of the public lands, or
of any private land claim which has been or may be con-
firmed 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.

Sec. 59. Whoever, before or at the time ,Ag"emem,, 0.) Pt
of the public sale of any of the lands of the ™*

United States, shall bargain, contract, or  a.g. s,9373,
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-
630 CRIMES.—Cxu. 4.

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 imprisoned not
more than two years, or both.

Ste opp etitet == Sc. 60. Whoever shall willfully or ma-
tae liciously injure or destroy any of the works,
23 June, 1874, 18 Stat. Property, or material of any telegraph, tele-
L, 250 ¢. 461; 1 Supp. hone, or cable line, or system, operated or
controlled by the United States, whether con-
structed, or in process of construction, or shall willfully or
maliciously interfere in any way’ with the working or use of
any such line, or system, or shall willfully or maliciously
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.

foeunlerteiting weather = Sec, 61. Whoever shall knowingly issue

———————— or publish any counterfeit weather forecast
a ae, Be Phe, or warning of weather conditions falsely
Sia, L797) 6 106 2 ey such forecast or warning to have
1298, 29 Stat. L, 108 ¢, Deen issued or published by the Weather
140) Supp 400 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.
employes of “Bueas SEC. 62. Whoever shall forcibly assault,
cnet  TustY: resist, oppose, prevent, impede, or interfere
7 with any officer or employee of the Bureau
L. 1265, c. 1492.5. 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 dangerous weapon in resisting any officer or employee of
the Bureau of Animal Industry of the Department of Agri-
culture 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.
CRIMES.—Cu. 4. 631
Sec. 63. Whoever shall forge, counterfeit, o¢Zager” of certificate
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,
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 imprisoned
not more than three years.
Concealment of de-

Sec. 64. Whoever shall willfully conceal struction or. invoices,
or destroy any invoice, book, or paper relat- “*
ing to any merchandise liable to duty, which p_g, «, 5443,
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 collec-
tion district, or shall at any time conceal or destroy 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 imprisoned not more than
two years, or both.

Sec. 65. Whoever shall forcibly assault,  @ocisting revenue
resist, oppose, prevent, impede, or interfere Stviné seized Property,
with any officer of the customs or of the in-
ternal 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 thousand dollars, or im-
prisoned 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.

Sec. 66. Whoever shall falsely represent , Palsely suming to be

R. 8., 8. 5417,

R.S., s. 5447.

a@ revenue ollicer.

himself to be a revenue officer, and, in such
assumed character, demand or receive any *®5* 5448.
632 CRIMES.—Cnu. 4.

re Bere 1? money or other article of value from any

rer Ram person for any duty or tax due to the United

States, or for any violation or pretended viola-
tion of any revenue law of the United States, shall be fined
not more than five hundred dollars and imprisoned not more
than two years.

peering. presents to =SEec. 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 of the revenue, any gratuity 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.

B.5., 8. 5452.

g Admitting mechan” Sec. 68. Whoever, being an officer of the

Se revenue, shall, by any means whatever,

R.8, 6. 5444, knowingly admit or aid in admitting to entry,

——_—_———- any goods, wares, or merchandise, upon pay-

Fel Bp” =) 1 ment 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,

meen eaey of = Sec. 69. Whoever, by any means what-

ennle. Ue. ever, shall knowingly effect, or aid in effecting,
B.S, ». 5448. any entry of goods, wares, or merchandise, at
——__—_———. less than the true weight or measure thereof,
Fel, Rep ae" 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.

False certificati ‘
con alge certification by = Src. 70. Whoever, being a consul, or

vice-consul, or other person employed 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 imprisoned
not more than three years.

R. 8., ». 5442.
CRIMES.—Cnz. 4. 633

Sec. 71. Whoever shall dispossess or res- a tte, “Het ap or
cue, or attempt to dispossess or rescue, any ™™? °-
property taken or detained by any officer or az, 6.5448.
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.

Sec. 72. Whoever shall falsely make, X72, jitetine
forge, counterfeit, or alter any instrument in ‘™2owe documents.
imitation of, or purporting to be, an abstract pag, , sas.
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 carry-
ing on the coasting trade or fisheries 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, pub-
lish, or pass, or attempt to utter, publish, or pass, as true,
any such false, forged, counterfeited, or falsely altered
instrument, abstract, official copy, certificate, license, pass,
passport, sea letter, clearance, permit, debenture, or other
official document herein specified, knowing the same to be
false, forged, counterfeited, or falsely altered, with an intent
to defraud, shall be fined not more than one thousand dollars
and imprisoned not more than three years.

Sec. 73. Whoever shall falsely make, ,uciing military
alter, forge, or counterfeit any military
bounty-land warrant, or military bounty- p.g.«.ss0.
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 military
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
634 CRIMES.—Cu. 4.

shall utter, publish, or pass as true, any such false, forged, or
counterfeited military bounty-land warrant, military bounty-
land warrant certificate, certificate or duplicate certificate of
location, certificate or duplicate certificate of purchase,
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.

can erpings te omti- Sec. 74. Whoever shall falsely make,

forge, or counterfeit, or cause or procure to
tae itor ie” «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.

fon nmaying. ete» piste ~~ Sec. 75. Whoever shall engrave, or cause
graphing, cellité..g7 or procure to be engraved, or assist in engrav-
Stee, cits certificate ing, any plate in the likeness of any plate
~“b0 June, 1906, 24stat, Gesigned for the printing of a certificate of
L., 602, ¢. 3692817. Gitizenship; or whoever shall sell any such
plate, or shall bring into the United States from any for-
eign 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 certificate has been printed, with in-
tent 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, photographed, 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
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
CRIMES.—Cu. 4. 4 635

more than ten thousand dollars, or imprisoned not more
than ten years, or both.

Sec. 76. Whoever, when applying to be ft Sete Rene
admitted a citizen, or when appearing as a
witness for any such person, shall knowingly a.5,,5. 5424.
personate any person other than himself, or
shall falsely appear in the name of a deceased yc4’ #p,"304 "8s
person, or in an assumed or fictitious name; Rai “4 Fed: Rep.,
or whoever shall falsely make, forge, or
counterfeit any oath, notice, affidavit, certificate, order,
record, signature, or other instrument, paper, or proceed-
ing required or authorized by any law relating to or provid-
ing for the naturalization of aliens; or whoever shall utter,
sell, dispose of, or shall use as true or genuine, for any un-
lawful purpose, any false, forged, antedated, or counterfeit
oath, notice, certificate, order, record, signature, instru-
ment, paper, or proceeding above specified; or whoever shall
sell or dispose 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.

Sec. 77. Whoever shall use or attempt eeu eee
to use, or shall aid, assist, or participate in “mbit
the use of any certificate of citizenship, By fos, 1900, 34 Stat.
knowing the same to be forged, counterfeit, [+9 % 35% 8.19.
or antedated, or knowing the same to have pQ-Sj5 Melt. 118 Fed.
been procured by fraud or otherwise unlaw-
fully obtained; or whoever, without lawful excuse, shall
knowingly possess any false, forged, antedated, or coun-
terfeit certificate of citizenship purporting to have been
issued under any law of the United States relating to nat-
uralization, knowing such certificate to be false, forged,
antedated, or counterfeit, 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 pro-
cure, or to aid in procuring, the issuance of such cer-
tificate, or knowing the same to have been fraudulently
altered or antedated; or whoever, without lawful excuse,
636 CRIMES.—Cxu. 4.

shall have in his possession any blank certificate of citizen-
ship provided by the Bureau of Immigration and Naturaliza-
tion with the intent unlawfully 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 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.

ering false certificate, § Sec. 78. Whoever shall in any manner
to'vote, ete: use, for the purpose of registering as a voter,
R.8., 8. 5426, or as evidence of a right to vote, or otherwise
unlawfully, any order, certificate of citizen-
Blick 1, nated ship, or certificate, judgment, or exemplifi-
Lehina, 3 Pa. Hep” Cation, showing any person to be admitted to
be a citizen, whether heretofore or hereafter
issued or made, knowing that such order, certificate, judg-
ment, or exemplification 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 thousand dollars,
or imprisoned not more than five years, or both.
sense? “aiming i Sec. 79. Whoever shall knowingly use
any certificate of naturalization heretofore or
which hereafter may be granted by any court,
Green» U. 8. 160 which has been or may be procured through
eg Hamilton, 167 fraud or by false evidence, or which has been
pee or {may hereafter be issued by the clerk
or any other officer of the court without any ap-
pearance and hearing of the applicant in court and with-
out 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.

R. 8., 8. 6428.

naraking false oath in Src. 80. Whoever, in any proceeding
“2a. under or by virtue of any law relating to the
igi oe naturalization of aliens, shall knowingly
Fed. Rep., 267; Boren SWear falsely in any case where an oath is
CRIMES.—Cnu. 4. 637
made or affidavit taken, shall be fined not fv: s2!4 14,7:
more than one thousand dollars and im- "Be %
prisoned not more than five years.
Provisions apelinehh

Sec. 81. The provisions of the five sec~ to ail courts of natura-
tions last preceding shall apply to all pro- “=.
ceedings had or taken, or attempted to be azg_.« sa.
had or taken, before any court in which
any proceeding for naturalization may be commenced or
attempted to be commenced, and whether such court was
vested by law with jurisdiction in naturalization proceed-

‘ ings or not.
Sec. 82. Whoever, with intent that any Shangheling and falsely

person shall perform service or labor of any {ated.,io,8° on vessel

kind on board of any vessel engaged in trade ——————-—-

and commerce among the several States or 1,7gjiejige: 34 Stat.

with foreign nations, or on board of any vessel 17." 30% 34 Stat.

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 representations which he

knows or believes to be untrue, or while the person so pro-

cured 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
person 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 dollars, or im-

prisoned not more than one year, or both.

Sec. 83. It shall be unlawful for any na- ;,comorptions ete.. not
tional bank, or any corporation organized by Plitical clections, eto.
authority of any law of Congress, to make a 46 Jan, 1907, 34 Stat.
money contribution in connection with any 1° 40.
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
638 CRIMES.—Cu. 4-5.

of a United States Senator. Every corporation which shall
make any contribution in violation of the foregoing pro-
visions 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.

a ine birds, or ~~ Sec. 84. Whoever shall hunt, trap, cap-

breeding grounds Pr ture, willfully disturb, or kill any bird of any
——————— kind whatever, or take the eggs of any such
1 33ane jeae’ °* 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 Secre-
tary 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.

CHAPTER FIVE.

OFFENSES RELATING TO OFFICIAL DUTIES.

 

Sec. Sec.

85. Officer, etc., of the United 97. Embezzlement by Internal
States guilty of extortion. Revenue officer, etc.

86. Receipting for larger sums than 98. Officer contracting beyond spe-
are paid. cific appropriation.

87. Disbursing officer unlawfully 99. Officer of United States court
converting, etc., public mon- failing to deposit moneys,
ey. etc.

88. Failure of treasurer, etc., to 100. Receiving loan or deposit from
safely keep public money. officer of court.

89. Custodian of public money 101. Failure to make returns or re-
failing to safely keep, etc. ports.

90. Failure of officer to render ac- 102. Aiding in trading in obscene

5 ao ee a er literature, etc.

. Failure to deposit as required. ; i i i

92. Provisions of the five preced- i Se eae eo
es pectiona to whom appli- public property.

93. Renard évideuce of embeszle 104. Certain officers forbidden to
ment. purchase, etc., witness, etc.,

94, Prima facie evidence, fees.

95. Evidence of conversion. 105. Falsely certifying, etc., as to

96. Banker, etc., receiving deposit record of deeds, etc.,
from disbursing officer, 106. Other false certificates,
 

CRIMES.—Cu. 5. 639
Sec. Sec.
107. Inspector of steamboats receiv- 116. Contracts to which two preced-
ing illegal fees. ing sections do not apply.
108. Pension agent taking fee, etc. 117. United States officer accepting
109. Officer not to be interested in bribe.
claims against United States, 118. Political contributions not to
110. Member of Congress, etc., be solicited by certain offi-
soliciting or accepting bribe, cers.
etc. 119. Political contributions not to
111. Offering, etc., Member of Con- be received in public offices.
gress bribe, etc. 120. Immunity from official pro-
112. Member of Congress taking Scription. :
consideration for procuring 121. Giving money to officials for
contract, office, etc.; offer- political purposes prohibit-
ing Member consideration, ed. Ba cas ;
etc. 122. Penalty for violating provis-
113. Member of Congress, etc., tak- pea four preceding sec-
ing compensation in matters 123 Governui ent ioficer: elec ‘ot
: 3 ; - ; + giv-
ve ynich United States is a ing out advance information
Party, respecting crop reports.
114, Members of Congress not to be 124, Government officer, etc.,know-
interested in contract. ingly compiling or issuing
115. Officer making contract with false statistics respecting
Member of Congress. crops.
Officer, etc. of the

Sec. 85. Every officer, clerk, agent, or

employe of the United States, and every per-
son representing himself to be or assuming
to act as such officer, clerk, agent, or em-
ployee, who, under color Of his office, clerk-
ship, agency, or employment, or under color
of his pretended or assumed office, clerkship,
agency, or employment, is guilty of extor-
tion, 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 dollars, or imprisoned not
more than one year, or both.

Sec. 86. Whoever, being an officer, clerk,
agent, employee, or other person charged
with the payment of any appropriation made
by Congress, shall pay to any clerk or other
employee of the United States a sum less

United States guilty of
extortion.

R. S., 8, 5481.
28 June, 1906, 34 Stat.
L., 546, c. 3574.

Williams ». U. 8., 168
U. §., 382; Ogden r.
Maxwell, 3 Blatch. 319,
18 Fed. Cas., 613; U. 8.
t. Carr, 3 Sawyer, 302,
25 Fed. Cas., 303. U.S.
v. Waitz, 3 Sawyer, 473,
28 Fed. Cas., 386; U. S.
2, Harned, 3 Fed. Rep.,
376; U. S. ». Deaver, 14
Fed. Rep., 595; U.S ».
More, 18 Fed. Rep., 696;
U. S. ». Schlierholz, 133
Fed. Rep., 333; 137 Fed.
Rep., 616.

Receipting for larger
sums than are paid.

R.S., 8. 5483,

U. 8. 0. Mayers, Fed.
Rep., 159.

than that provided by law, and require such employee to re-
ceipt or give a voucher for an amount greater than that actu-
ally 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,
640 CRIMES.—Cnu. 5.

levity atveting ee, SEC. 87. Whoever, being a disbursing offi-

TuHiS BOT: cer of the United States, or a person acting as
R. 8, 8. 5488, such, shall in any manner convert to his own

use, or loan, with or without interest, or de-
15 A.G. Op. 28. nosit 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
depositary, or transfer, or apply, any portion of the public
money intrusted to him, shall be deemed guilty of an em-
bezzlement 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.

ona Eareasuer = Sec. 88. If the Treasurer of the United
Reon States or any assistant treasurer, or any pub-

R.S., 8. 5489, lic depositary, fails safely to keep all moneys
~ 31 Mar., 1886, 24 Stat, CePOSsited by any disbursing officer or dis-
1. 9¢.41,s.1;18upp. bursing agent, as well as all moneys deposited
——__—_———_ by any receiver, collector, or other person

15 4.G. Op. 288. 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.

Custodians of publi
money failing to safely SEC. 89. Every officer or other person

Keep: a, charged by any act of Congress with the safe-
B.S. 8.5490. keeping of the public moneys, who shall loan,
use, or convert to his own use, or shall de-

8." Cook, 1
Wali, 168;"U. Sa For posit in any bank or exchange for other funds,

aythe, 6M ‘ts 74, except as specially allowed by law, any por-
G. Op., 82, 257, ‘tion of the public moneys intrusted to him
for safe-keeping, shall be guilty of embezzlement of the
moneys 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.

render seoounte se,” __ SEC. 90. Every officer or agent of the

RS, U0. United States who, having received public
a money which he is not authorized to retain
4 Pao lo Rep. 2h as salary, pay, or emolument, fails to render

26 Fed. Cas., 452;
G. Op, 685.” “ his accounts for the same as provided by law
CRIMES.—Ch. 5. 641

shall be deemed guilty of embezzlement, and shall be fined
in a sum equal to the amount of the money embezzled
and imprisoned not more than ten years. ;

Sec. 91. Whoever, having money of the ,_falue ' «post ss
United States in his possession or under his
control, shall fail to deposit it with the Treas-
urer, or some assistant treasurer, or some vy. 8. ». Dimmick,
public depositary of the United States, when pena ey? tai
required so to do by the Secretary of the 4,72, %% % *
Treasury, or the head of any other proper
department, or by the accounting 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.

Sec. 92. The provisions of the five pre- p.crojitions of the fve
ceding sections shall be construed to apply *le
to all persons charged with the safe-keeping, p.g,,. 5493.
transfer, or disbursement of the public money,
whether such persons be indicted as receivers or depositaries
of the same.

Sec. 93. Upon the trial of any indictment ,,Recrd, evidence of
against any person for embezzling public
money under any provision of the six preced-
ing 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 civil cases, under the provisions for
the settlement of accounts between the United States and
receivers of public money.

Sec. 94. The refusal of any person, Prime fade evidence.
whether in or out of office, charged with the  x.5.,5. 5495.
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 any such
money, promptly, upon the legal requirement of any au-
thorized officer, shall be deemed, upon the trial of any in-
dictment against such person for embezzlement, prima facie
evidence of such embezzlement.

41

R. 8., 8. 5492.

R. &., 8, 5494.
642 CRIMES.—Cnu. 5.

eriene® fF eonver- = Sec. 95. If any officer charged with the

disbursement of the public moneys accepts,
receives, or transmits to the Treasury De-
partment to be allowed 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 dis-
bursement, 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 such
officer to his own use of the amount specified in such receipt
or voucher.

R.5., s. 5496.

Banker, etc., receiv-

sneer eles tee =~ Sec. 96. Every banker, broker, or other
Dureitig oftqex: person not an authorized depositary of public

R.8., 6. 5497. moneys, who shall knowingly receive from
2 Aab> 387g. 2 Hat any disbursing officer, or collector of internal
Sapp 214: revenue, or other agent of the United States,

Cook County Na. any public money on deposit, or by way of
tional Bank ei @ loan or accommodation, with or without in-
as terest, or otherwise than in payment of a
debt against the United States, or shall use, transfer, convert,
approvriate, 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 bank-
ing 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 ap-
plied, and shall be fined not more than the amount embez-
zled, or imprisoned not more than ten years, or both.

Embezzlement by in-

temalrevenue often, SEC. 97. Any officer connected with, or
~— employed in, the Internal Revenue Service
R.S., 8. 5497. of the United States, and any assistant of
Lo seas 2 124% such officer, who shall embezzle or wrong-
BOP Ate fully 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 execution of such office or em-
ployment, or under color or claim of authority as such officer

or assistant, whether the same shall be the money or prop-
CRIMES.—Cnu. 5. 643

erty 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 con-
verted, or imprisoned not more than ten years, or both.

Sec. 98. Whoever, being an officer of the peyoad” speuite ‘spore
United States, shall knowingly contract for ™™%™
the erection, repair, or furnishing of any pg, 5503.
public building, or for any public improve-
ment, to pay a larger amount than the specific sum ap-
propriated for such purpose, shall be fined not more than two
thousand dollars and imprisoned not more than two years.

Sec. 99. Whoever, being a clerk or other Qn piunited States
officer of a court of the United States, shall ™™™
fail forthwith to deposit any money belonging zg. 4 ss04.
in the registry of the court, or hereafter paid pei"Rep" ne. &
into court or received by the officers thereof, ° Bay: 10 Biss.. 238.
with the Treasurer, assistant treasurer, or a designated de-
positary 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 embaz-
zlement, 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 security, according to agreement of
parties, under the direction of the court.

Sec. 100. Whoever shall knowingly re- amoiinine ioe. o
ceive, from a clerk or other officer of acourt °™*
of the United States, as a deposit, loan, or xg, ss05.
otherwise, any money belonging in the reg-
istry of such court, is guilty of embezzlement, and shall be

punished as prescribed in the preceding section.

Sec. 101. Every officer who neglects or ,.qiure.to, make
refuses to make any return or report which
he is required to make at stated times by any 8+". 1780.
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.

 
644 CRIMES.—Cu. 5.

oping, 2 trading @ ~~ SEC. 102. Whoever, being an officer, agent,
“R.8.2178. . Ooremployee of the Government of the United
fae tid 8 States shall knowingly aid or abet any per-
Typ oT Rie 1304, 28 Stat. SON engaged in violating any provision of law
La re ¢ 440,8. 11;2 prohibiting importing, advertising, dealing in,
ve ul 1, oS exhibiting, or sending or receiving by mail,
Supp.708. "obscene or indecent publications or represen-
Fel Bp 480 am’.@ tations, or means for preventing conception
under M Saaersi OF 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.

butsing offers for SEC. 103. Whoever, being an officer of
Pidden to trade in public the United States concerned in the collection
“RB. Bes. 1788, 1789. OF the disbursement of the revenues thereof,
“Y4A.G.0p,3s2, Shall carry on any trade or business in the

funds or debts of the United States, or of
any State, or in 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 thereafter be incapable of holding any office under the

United States.

bide poeems fos Sc. 104. Whoever, being a judge, clerk,
eubpas, ete fees: or deputy clerk of any court of the United
25 Feb., 1997, 29 Stat, States, or of any Territory thereof, or a
53 © 5162 SPP» United States district attorney, assistant at-
torney, marshal, deputy marshal, commis-
sioner, 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.

Falsel fyi .
as to mod fede” = 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 such law may be recorded,
shall knowingly certify falsely that such conveyance or in-
CRIMES.—Cu. 5. 645

strument has or has not been recorded, shall be fined not
more than one thousand dollars, or imprisoned not more
than seven years, or both.

Sec. 106. Whoever being a public officer Qi? " ott
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 else-
where expressly provided by law, shall be fined not more
than five hundred dollars, or imprisoned not more than one
year, or both.

Sec. 107. Every inspector of steamboats our ctinte “tiaual
who, upon any pretense, receives any fee or **
reward for his services, except what is allowed a... 5492.
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.

Sec. 108. Every pension agent, or other ,f%iie sett taking
person employed or appointed by him, who
takes, receives, or demands any fee or reward ®8»* 5487.
from any pensioner for any service in connection with the
payment of his pension, shall be fined not more than five
hundred dollars.

Sec. 109. Whoever, being an officer of pontine eit
the United States, or a person holding any United States.
place of trust or profit, or discharging any —*-5:*. 5%.

official function under, or in connection with, yf gute ee

any Executive Department of the Govern- ton, 18 Ce, Tak

ment of the United States, or under the #3) ¢°P S73 16a"
Senate or House of Representatives of the °° #8

United States, shall act as an agent or attorney for pros-
ecuting any claim against the United States, or in any man-
ner, or by any means, otherwise 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 imprisoned not more than one year, or both.
646 CRIMES.—Cau. 5.
eset omber, of Congress, Sec. 110. Whoever, being elected or ap-
eeptine bribe. pointed a Member of or Delegate to Con-
R. 8, os. 1781, 8500, gress, or a Resident Commissioner shall,
us after his election or appointment, and either
U. 8. » Kees, 2 before or after he has qualified, and during
fed: Rep. 67; Fd his continuance in office, directly or indirectly
Hedeiths ask, accept, receive, or agree to receive, any
money, property, or other valuable consideration, or any
promise, contract, undertaking, 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, 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 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
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 be
forever disqualified from holding any office of honor, trust,
or profit under the Government of the United States.

Offering, etc., Mem-
ber of Congress bribe,
ete.

Sec. 111. Whoever shall promise, offer,
or give, or cause to be promised, offered, or
R.8., 8. 5450. 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 official capacity or in his

place as such Member, Delegate, or Resident Commissioner,
CRIMES.—Cu. 5. 647

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.

Sec. 112. Whoever, being elected or ap- ,fember,of Consrose

pointed a Member of or Delegate to Congress, Pacc'Tin® conacte,
or a Resident Commissioner, shall, after his Memb consideration,
election or appointment and either before or “Rs,.178.
after he has qualified and during his con- ~ gy parte Curtis, 106
tinuance in office, or being an officer or agent Prd: 33' nli. ep”
of the United States, shall directly or in- 336'rui Rey” eae
directly take, receive, or agree to receive, 4 GOs, 4s" 850; 14
from any person, any money, property, or

other valuable consideration whatever, for procuring, or
aiding to procure, any contract, appointive office, or place
from the United States or from any officer or Department
thereof, for any person whatever, or for giving any such
contract, appointive office, or place to any person whomso-
ever; 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, appointive 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.

Sec. 113. Whoever, being elected or ap- Sn oe
pointed a Senator, Member of or Delegate to 3aiters,'9 Wiich United
Congress, or a Resident Commissioner, shall, “R.s,.172.
after his election or appointment and either “Gx parte cutis, 106
before or after he has qualified, and during J" §” ive'v. 8.983;
his continuance in office, or being the head of Drigw 33h esp”
a department, or other officer or clerk in the fag Mest se
employ of the United States, shall, directly or Pip'y Meh, Be.
indirectly, receive, or agree to receive, any xe, Tae fa ie
compensation whatever for any: services P**
rendered or to be rendered to any person either by him-
self 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
648 CRIMES.—Cx. 5.

or indirectly interested, before any department, court-mar-
tial, bureau, officer, or any civil, military, or naval com-
mission 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.

noMlember, of Congress Sec. 114. Whoever, being elected or ap-
eee pointed a Member of or Delegate to Congress,

B.S, 8. 3739, or a Resident Commissioner, shall, after his
———————— election or appointment and either before or
128 Ped, % teh after he has qualified, and during his con-
«. “Sit 2,54 tinuance in office, directly or indirectly, him-
ee self, or by any other person in trust for him,
or for his use or benefit, 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 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, it shall forthwith be repaid; and in case of
failure or refusal to repay the same when demanded by 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 sureties, for the recovery of the
money so advanced.

tract ith "Mesberar SEC. 115. Whoever, being an officer of
aia the United States, shall on behalf of the
R.B,, ». 3742. United States, directly or indirectly make or

—————— enter into any contract, bargain, or agree-
aceon sP'3a0 “© 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, Delegate, or Resident Commissioner, and
either before or after he has qualified, and during his con-
tinuance in office, shall be fined not more than three thousand

dollars.
CRIMES.—Cu. 5, 649
Sec. 116. Nothing contained in the two syo"uersling’ scctious
preceding sections shall extend, or be con- °°":
strued to extend, to any contract or agree- 2.3, 5.3740.
ment 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 com-
pany; nor to the purchase or sale of bills of 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.
United States officer

Sec. 117. Whoever, being an officer Of accepting bribe.
the United States, or a person acting for or “Rg, as. 6601, 5502.
on behalf of the United States, in any offi- “{. 5. Kemel, 62
cial capacity, under or by virtue of the au- var pon ot Ce 8
thority of any department or office of the #.2?os 532s
Government thereof; or whoever, being an Rep ee 2 U.
officer or person acting for or on behalf of Siar U. 8. 138 Fed.
either House of Congress, or of any commit- ™°
tee of either House, or of both Houses thereof, shall ask,
accept, or receive any money, or any contract, promise,
undertaking, obligation, gratuity, or security for the pay-
ment of money, or for the delivery or conveyance of any-
thing 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, 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.

Sec. 118. No Senator or Representative not ili contributions
in, or Delegate or Resident Commissioner to °#ioficers.
Congress, or Senator, Representative, Dele- ;,"%38™, 13” Sit
gate, or Resident Commissioner elect, or Supp., 395,
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,
650 CRIMES.—Cu. 5.

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 solicit-
ing or receiving, any assessment, subscription, or contribu-
tion for any political purpose whatever, from any officer,
clerk, or employee of the United State, or any depart-
ment, branch, or bureau thereof, or from any person re-
ceiving any salary or compensation from moneys derived
from the Treasury of the United States.

Political contributions

not te te euiutors, ~=-s Sec. 119. No person shall, in any room
public offiees. or building occupied in the discharge of offi-
1 5,d3, 1988. 22 Stat’ cial duties by any officer or employee of the

Supp. aus Us’ 39, United States mentioned in the preceding

Bob. eohaver, 154 Fed section, or in any navy-yard, fort, or arsenal,
163 Fed. Rep. 926. solicit in any manner whatever or receive
any contribution of money or other thing of value for any

political purpose whatever.

Immunity from off-

cial proscription, ete. Sec. 120. No officer or employee of the
———————. United States mentioned in section one hun-
18,37, 1683. 22 St’ dred and eighteen, shall discharge, or pro-
BURR S00: mote, or degrade, or in any manner change
the official rank or compensation of any other officer or em-
ployee, or promise or threaten so to do, for giving or with-
holding or neglecting to make any contribution of money
or other valuable thing for any political purpose.

to iene money’ ete ~=—s Sec. 121. No officer, clerk, or other pre-
ical purposes prohib- son in the service of the United States shall,
jan, 188, 2B directly or indirectly, give or hand over to
L, 407, © 27,6. 14; 1 Any other officer, clerk, or person in the serv-
Sip. ib ice of the United States, or to any Senator
or Member of or Delegate to Congress, or Resident Com-
missioner, any money or other valuable thing on account of
or to be applied to the promotion of any political object
whatever.

proud, 1 giolating ~~ Sec, 122. Whoever shall violate any pro-
eee vision of the four preceding sections shall be
138,390, 1888, 22 Sat fined not more than five thousand dollars, or

.. 407, ¢. 27, 8. 15; :
Supp. 396.’ * 1 imprisoned not more than three years, or both.
CRIMES.—Cu. 5. 651

Sec. 123. Whoever, being an officer or sar Gris Oot sivas
employee of the United States or a person formation. respecting
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, em-
ployment, 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 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
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.

Sec. 124. Whoever, being an officer or ,GQvornment offer,

etc., knowingly compiling

employee of the United States, and whose (r,iuine false statistics
duties require the compilation or report of

statistics or information 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 dollars, or im-

prisoned not more than five years, or both.
 

652 CRIMES.—Cn. 6.
CHAPTER SIX.
OFFENSES AGAINST PUBLIC JUSTICE.
Sec. Sec.
125. Perjury. 136. Conspiring to intimidate party,
126. Subornation of perjury. witness, or juror.
127, Stealing or ipa oe ce ocess; 137. Attempt to influence juror.
procuring false bail, etc. . .
128. Destroying, etc., public rec- ro: Seine: puseker ts eee Pee
ords. 139. Application of preceding sec-
129. Destroying records by officer tion.
in charge. 140. Obstructing process or assault-
130. Forging signature of judge, etc. ing an officer.
131. Bribery of a judge or judicial 141. Rescuing, etc., prisoner; con-
officer. cealing, etc., person for
132. Judge or judicial officer accept- whom warrant has issued.
ing a bribe, etc. 142. Rescue at execution.
133. Juror, referee, master, etc., or .
judicial officer, etc., accept- 143. Rescue of prisoner.
ing bribe. 144, Rescue of body of executed
134. Witness accepting bribe. offender.
135. Intimidation or corruption of 145. Extortion by informer.
witness, or grand or petit 146. Misprision of felony.
juror, or officer.
oe Sec. 125. Whoever, having taken an oath
R. 8., 8. 6392.

U. 8.» Passmore, 4
Dall., 302; U. & 2
Bailey, 9 Pet., 238; U.
8. 2. Wood, 14 Pet., ‘480;
ve 8. ay Nickersen, 17

0

w., 204; U. 8. 9.
tis, 107 U. 8, 671; U. 8.
Ami U. 8.

8., 177; Logan ». U. §,.
144 U. 8., 263, 302; U.S.
v. Eaton, "144 U. 8, 677;

Caha 2. U. B, 152 U. Bese

211, 215, 220; : New York

Uv: 8., 158 U. 8., 278, 284;
Bucklin v. U. 8.,
U. 8., 680, 682; Mark-

m 2. . 8.

. Babcock, 4Me

 
  

8, 2. Jones, 14 Blatch,
os . Bartow, 10 Fed.

sAeeece

ees

: 36 Fed. Rep., 744; U.

ge.

before a competent tribunal, officer, or per-
son, in any case in which a law of the United
States authorizes an oath to be administered,

‘cu. that he will testify, declare, depose, or cer-

tify truly, or that any written testimony,

55 declaration, deposition, or certificate by him

subscribed, is true, shall willfully and con-
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

5; not more than two thousand dollars and im-

prisoned not more than five years.

60

319, 323; Tn re Pollock, 165 U. §., 526, 533; U. 8. ». Atkins, 1 Sprague, 558, 24 Fed. Cas., 885;
8. n, 113, 24 Fed. Cas., 928; U. 8. v. Clark, 1 Gall., 497, 25 Fed. Cas., 441;

», Conner, 3 McLean, 873, 25 Fed, Cas., 595;
. ». Kendrick, 2 Mas., 60, 26 Fed. Cas., 758; Ex} parte Bridges, 2 Woods, 428, 4 Fed. Cas., 99;
8. 9, , Nichols, 4 McLean, 23, 27 Fed. Cas, 151; U.S. ». Smit! , 1 Saw., 277, 27 "Fed. Cas., 1175;
. 8. ». Sonachall, 4 Biss., 425, 27 Fed. Cas., "1259; U.S ». Volz, 14 Blatch., 15, 28 Fed. Cas., 384;
90, 26 Fed. Cas., 638; U. 8.9. Baer, 18 Blatch., 493, 6 Fed Cas., 42
"Rep., 873; U. 8. 0. Neal, 14 Fed. Rep., 761; 0 i. ». Madison, 21 Fed,
628; U. 8. ». Walsh, 22 Fed. Rep., 644; U, 8.0, Landsberg, 23 Fed. Rep., 685; U.S 8. ». Hear-

8. 2, Grottkau, 30 Fed. Rep., 672; U. 8, 9. , Burkhardt, 31 Fed. Rep., 141;
. 8.0. Boggs, 31 Fed, Rep., UB. 34

U.S. 9. Deming, 4 McLean, 325 Fed. Cas., 816;

337; U. §.'s. McCona 1 33 Fed. Re p., 168; Babcock ».

Fed. Rep., 874; U. 8. ». Howard, 37 Fed. Rep, 860; 1.8. ». Cuddy, 30 Fed. Rep. 6, U8
Edwar 43 Fed. Rep. 67; U. 8.0. Wood, 44 ‘ed. Rep. ee UBS enon,

U, 8. . Il, 44 Fed.

915; U. 8. », Singleton, 64 Fed. Re

Fed. Rep. +» 1915

p 84; U. 8. 2, Bedford, 49 Rep, U. 8. ». Law, 6 tel
ae oe 70 Fa ep, 8; 08 Lo

8. ». Maid, rg Pinal 650; Noah 2, U. §., 128'Fed. » 0: u,

Hardigon, 185 Fed. Rep., 419; Van Gemner «. U. 8 ed. Rep., 46; U. 8. 9

45; Narnberper ». UBL 160 Fed. Rope 72, Osan sO. Be 168 Fed Reps 176.
Fed. wep

Wechsler 2. U. 8., 158

Rep. 879 Nickell v. U. 8., 161 Fed. Rep., 702; Sullivan . 161

Fed. Rep., 254; Barnard ». U. 2 Fed. Rep., 622: U. 8. ». Lamao! 165 Fed. Rep., 80; Hashagen
v. U.S., 169 Fed. Rep., 396; U. "sg ; Patterson, 171 Fed. Rep., 241; U. 8. ». Ammerman, 17
Rep., 635; 2A. G. Op., 700; 2 Comp. Dee., 2583.
CRIMES.—Cu. 6. 653
Sec. 126. Whoever shall procure another jy °t?isstion of per
to commit any perjury is guilty of suborna- “Rg, s. 5393.
tion of perjury, and punishable as in the Us .. Denne, 3

preceding section prescribed. 817; U.S. ». Wilcox, 4

Blatch., 393, 28 Fed. Cas., 600; U. 9. ». Evans, 19 Fed. Rep., 912; U. 8. ». Thompson, 31 Fed.
Rep., 331; Babeock ». U. 8, 84 Fed. Rep., 873; U. 8. ». Howard, 132 Fed. Rep., 325; U. 8. ».
Cobban, 134 Fed. Rep., 290; U.S. ». Brace, 144 Fed. Rep., 869.

Sec. 127. Whoever shall feloniously steal, 52", ,tltiag

take away, alter, falsify, or otherwise avoid bet, et.

any record, writ, process, or other proceed- zg. ss04.

ing, in any court of the United States, by ————————
means whereof any judgment is reversed, pay’ Her, fore Se
made void, or does not take effect; or who- gs’ @ arts?”
ever shall acknowledge, or procure to be ac-

knowledged, 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 thou-
sand dollars, or imprisoned not more than seven years or
both; but this provision shall not extend to the acknowledg-
ment of any judgment by an attorney, duly admitted, for
any person against whom such judgment is had or given.

Sec. 128. Whoever shall wilfully and un- ,.2&ovine ete» pubr
lawfully conceal, remove, mutilate, obliterate, “Rig.s.503.
or destroy, or attempt to conceal, remove, “U. 8. s. Goldberg, 7
mutilate, obliterate, or destroy, or, with Bis 73,1 23.Re
intent to conceal, remove, mutilate, oblit- U. 8 28 Fed, Rep, —o
erate, destroy, or steal, shall take and carry §°% BePq500 914 U-
away any record, proceeding, map, book, 2% Mg Tnemey
paper, document, or other thing, filed or People, t ee
deposited with any clerk or officer of any * vil) 18 Barb, 263.
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.

Sec. 129. Whoever, having the custody of ,qpestzeving records by.
any record, proceeding, map, book, docu- ————————
ment, paper, or other thing specified in the * 5% 5408

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 im-
prisoned not more than three years, or both; and shall
654 CRIMES.—Cu. 6.

moreover forfeit his office and be forever afterward dis-
qualified from holding any office under the Government
of the United States.

jugcrting signature of — Sec. 130. Whoever shall forge the signa-
—___—_—_—— ture of any judge, register, or other officer of

Ee apeve 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 signature or seal, for the purpose 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, sub-
scribed 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.

judeer emer Me Sec. 131. Whoever, directly or indirectly,
shall give or offer, or cause to be given or
Beseccerstenh 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 author-
ized 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
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 any office of honor,
trust, or profit under the United States.

aconiibe or iucicial oficer_ ~~ Sec. 132. Whoever, being a judge of the
——__———._ United States, shall in any wise accept or
recelve any sum of money, or other bribe,
present, or reward, or any promise, contract, obligation, 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 imprisoned not more than fifteen years, or both; and shall

R.8., ». 5499.
CRIMES.—Cu. 6. 655
be forever disqualified to hold any office of honor, trust, or
profit under the United States.

Sec. 133. Whoever, being a juror, referee, 9,2" referee, master:
arbitrator, appraiser, assessor, auditor, % %Ptine bribe.
master, receiver, United States commissioner, or other per-
son 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 agreement or understanding that his
vote, opinion, action, judgment, or decision, shall be influ-
enced 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.

Sec. 134. Whoever, being, or about to be, ,, wines 2cceptine
a witness upon a trial, hearing, or other
proceeding, before any court or any officer authorized 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 testi-
mony, or such absence, shall be fined not more than two
thousand dollars, or imprisoned not more than two years
or both.

Sec. 135. 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 or other pro-
ceeding before any United States commis-
sioner or officer acting as such commissioner,
in the discharge of his duty, or who cor-
ruptly or by threats or force, or by any
threatening letter or threatening communi-
cation, shall influence, obstruct, or impede, ¢

Intimidation or cor-
tuption of witness, or
grand or petit iuror,
or officer.

R.5S., ss. 5399, 5404.

Ex_parte Robinson,
19 Wall. 505; In re
Savin, 131. U. S., 267;
In re Neagle, 185 U. S.,
63; Petibone » U. S.,
148 U. SS. 197; U. 8.

833; U. S. ». Thomas, 47
Fed. Rep., 807; U.S. ».
Armstrong, 59 Fed. Rep.,
568; In re Brule, 71 Fed.
Rep., 943; U. S. 1. Me-

- Fed. Rep.,
416; U.S. ». Being
Y Am. L. Reg. (
656 CRIMES.—Cu. 6.

or endeavor to influence, obstruct, or impede, the due admin-
istration of justice therein, shall be fined not more than
one thousand dollars, or imprisoned not more than one
year or both.

dagmmiracy to intim” Sec. 136. If two or more persons con-
ee spire to deter by force, intimidation, or threat,

R.B,, ». 5406. any party or witness in any court of the
—————— United States, or in any examination before
pied #055" United States commissioner or officer acting
Price, 6 Fed. Rep. 960. 5 such commissioner, from attending such
court or examination, or from testifying to any matter pend-
ing therein, freely, fully, 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
account 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.

Attempt to influence

jator. Sec. 137. Whoever shall attempt to in-
———————— fluence the action or decision of any grand or
petit juror of any court of the United States

U. 8.» Kilpatrick, UPON any issue or matter pending before
AN Fed. Hep; 180. 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 dollars, or imprisoned not more than six
months, or both.

R.S., 6. 5405.

Allowing prisoner to

capa Sec. 138. 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 commissioner, and such marshal, deputy
marshal, 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 8., ». 5409.
CRIMES.—Cnu. 6. 657

Sec. 139. The preceding section shall be ;,A2pieation of preced-
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 of
extradition, but also to cases in which the prisoner may be
held in custody for removal to or from the Philippine Islands

R. &., 8. 5410,
6 Feb., 1905, 33 Stat.,
L., 698, c. 454, s. 2.

‘aS provided by law.

Sec. 140. 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 warrant,
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 person so duly 4°?

authorized, in serving or executing any such

writ, rule, order, process, warrant, or other g

legal or judicial writ or process, shall be fined
not more than three hundred dollars and im- 7

Obstructing process or
assaulting officer

R. 8., 8. 5398.

U. 8. _». Bachelder, 2
call, 15, 24 Fed. Cas.,
931; "U.S. 2. Fears, 3
Wood, 510, 25 Fed. Cas.,
1053; 'U. 8. ». Hudson,
1 Haskell, 527, 28 Fed.
Cas., 06; U. So. Keen,
5 Mason, 453, 26 Fed.
ae 693; U. 8. ». Low-
2 Wash. 169, 26
Fed. Cas., 1008; U.S. 0
Lukins, 3 Wash., 335,
26 Fed. Cas. 1011; U.
S. McDonald, 8 Biss.,
439, 26 Fed. Cas., 1074;
». Smith, 1 Dill.
212, 27 Fed. Cas., 1161;
U. 'S. Slaymaker, 4
Wash., “16 a ee
Cas., "112 7; 8.
‘towel, Coat. "153, 7
Fed. Cas , 1350; U. 8. 0
Tinklepaugh, 3 Blatch.,
425, 28 Fed. us 193;

'8. . Huf, 13 Fed,
prisoned not more than one year. Rip. co, 8 ae
no U. = . Terry, 41 Fed. Rep., 771; Blake ». U S., 71 Fed. Rep., 286; U.S. ». Mullin, 71 Fed

p., 682.
Sec. 141. Whoever shall rescue or at- ,.ceumé,fte» Dae
tempt to rescue, from the custody of amy Pesos for whom war.

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
ef the fact that a warrant or process has been issued for the
apprehension of such person, shall be fined not more than one
one thousand dollars, or imprisoned not more than six
months, or both,

43

R. S., ss. 5401, 5516.
658 CRIMES.—Cnu. 6.

nore ** eeu = Sc, 142. Whoever, by force, shall set at

liberty or rescue any person found guilty in

ee 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 im-
prisoned not more than twenty-five years.

__Rescue of prisoner. Sec, 143. Whoever, by force, shall set at

Be liberty or rescue any person who, before con-
viction, stands committed for any capital crime; or who-
ever, 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 im-
prisoned not more than one year.

exes troy Ff = 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 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 deposited for dis-
section in pursuance of that section, shall be fined not more
than one hundred dollars, or imprisoned not more than one
year, or both.

re etortion by internal- Sec. 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 imprisoned not more than one year, or both.
Misprision of felony.
R. 8., 8. 5390.

R. §., 8. 5402.

BR. S., 8. 5484.

Sec. 146. Whoever, having knowledge 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 per-
sons in civil or military authority under the United States,
shall be fined not more than five hundred dollars, or
imprisoned not more than three years, or both.
CRIMES.—Cxu. 7.

659

CHAPTER SEVEN.

OFFENSES AGAINST THE CURRENCY, COINAGE, ETC.

Sec.
147.
148.
149.
150.
151.
152.
153.
154.
155.

156.
157.
158.

159.

160.

161.

162.
163.

Sec. 147.

“Obligation or other security
of the United States” de-
fined.

Forging or counterfeiting
United States securities.
Counterfeiting national-bank

notes.

Using plates to print notes
without authority, etc.

Passing, selling, concealing,
etc., forged obligations.

Taking impressions of tools,
implements, etc.

Having in possession unlaw-
fully such impressions.

Buying, selling, or dealing in
forged bonds, notes, etc.

Secreting or removing tools or
material used for printing
bonds, notes, stamps. etc.

Counterfeiting notes, bonds,
etc., of foreign governments.

Passing such forged notes,
bonds, etc.

Counterfeiting notes of foreign
banks.

Passing such counterfeit bank
notes.

Having in possession such
forged notes, bonds, etc.
Having unlawfully in posses-
sion or using plates for such

notes, bonds, etc.

Connecting parts of different
instruments.

Counterfeiting gold or silver
coins or bars.

 

Sec.
164.
165.
166.
167.
168.
169.
170.

171.
172.

173.

174.

175.

176.

177.

178.

The words “obligation or other
security of the United States’ shall be held
to mean all bonds, certificates of indebted-
ness, national bank currency, coupons, United i
States notes, Treasury notes, gold certifi-
cates, silver certificates, fractional notes, cer-
tificates of deposit, bills, checks, or drafts for
money, drawn by or upon authorized officers
of the United States, stamps and other rep-

Counterfeiting minor coins.

Falsifying, mutilating, or light-
ening coinage.

Debasement of coinage by
officers of the mint.

Making or uttering coins in
resemblance of money.

Making or issuing devices of
minor coins.

Counterfeiting, etc., dies for
coins of United States.

Counterfeiting, etc., dies for
foreign coins.

Making, importing, or having
in possession tokens, prints,
etc., similar to United States
or foreign coins.

Counterfeit obligations, secur-
ities, coins, or material for
counterfeiting, to be for-
feited.

Issue of search warrant for
suspected counterfeits, etc.,
forfeiture.

Circulating bills of expired
corporations.

Imitating national-bank notes
with printed advertisements
thereon.

Mutilating or defacing nat-
tional bank notes.

Imitating United States secur-
ities or printing business
cards on them.

Notes of less than one dollar
not to be issued.

“Obligation or other
security of the United
States” defined.

R. 8., 8. 5413.
28 Feb., 1878, 20 Stat.
L., 26, c. 20, 8. 3; 1 Supp.,

U. S. ». Bennett, 17
Blatch., 357, 24 Fed.
Cas., 1107; U. 8. ».
Trout, 4 Biss., 105, 28
Fed Cas.; 223; Ex parte
Houghton, 7 Fed. Rep.,
657, 8 Fed. Rep., 897;
U. 8. ». Albert, 45 Fed.
Rep., 552.
660 CRIMES.—Cu. 7.

resentatives of value, of whatever denomination, which
have been or may be issued under any act of Congress.

fee tated Sees «SEC. 148. Whoever, with intent to de-
securities. fraud, shall falsely make, forge, counterfeit,

R8.¢ 544 __ or alter any obligation or other security of
1 ved Rep ee Us, the United States shall be fined not more than
sei 3 ere five thousand dollars and imprisoned not

Fed’ Rep, More than fifteen years.
ine ‘eds Rep Fed. Rep. 112; U. 8. v. Albert, 45 Fed. Rep., 552; Neall ». U. 8, 118
Fed. Rep. 699.

geonnterfeiting m- = Sec. 149. Whoever shall falsely make,
“RB. BAIS, forge, or counterfeit, or cause or procure to
TS.» Bennett, 17 De made, forged, or counterfeited, or shall

v. 8
oa as Fed. willingly aid or assist in falsely making, forg-

Houghton, 7 Fed. ing or counterfeiting, any note in imitation
3, 34 Fed. Re

Gus, St Sten 3 Of, or purporting to be an imitation of, the
Wilson P44, Fed. ep circulating notes issued by any banking as-
151; Foran pe Uo, SOciation now or hereafter authorized and
ae 8, 4 acting under the laws of the United States;
gher ¢.,U- 8. 14 Fed. 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 counterfeited; 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 circulating note issued, or purporting
to have been issued, by any such banking association, know-
ing the same to be falsely altered or spurious, shall be fined
not more than one thousand dollars and imprisoned not more
than fifteen years.

nove pitas te Pint ~~ Sec. 150. Whoever, having control, cus-

she tody, or possession of any plate, stone, or
eee other thing, or any part thereof, from which
2 ae sia Fe has been printed, or which may be prepared
ti Cpe. "Ee «by direction of the Secretary of the Treas-
se %°t ury for the purpose of printing, any obliga-
ie U.S * Spgs tion or other security of the United States,

Rep. '#8;U'8». 8 Shall use such plate, stone, or other thing, or
CRIMES.—Cnh. 7. 661

vens, 52 Fed. Rep., 120:
U. 8

any part thereof, or knowingly suffer the U's": xuhi, $5’ Fed
Rep., 624; U.8. . Fitz-

same to be used for the purpose of printing genia 1 Fed. Rep,

any such or similar obligation or other se- {ii'rei. ‘hen, bem.

U:
curity, or any part thereof, except as may be Fes, Conners, 111, Fed.
printed for the use of the United States by Fit* Ju het Rep.
order of the proper officer thereof; or whoever ° '% Fed: Rep. 88.

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 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, except under the direc-
tion 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 se-
curity 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 execut-
ing 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 engraving, photograph, print,
or impression, except to the United States, or shall bring
into the United States or any place subject to the jurisdic-
tion thereof, from any foreign place any such engraving,
photograph, print, or impression, except by direction of
662 CRIMES.—Cu. 7.

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 obligations and other securities of the United States,
any similar paper adapted to the making of any such obli-
gation or other security, except under the authority of the
Secretary of the Treasury or some other proper officer of
the United States, shall be fined not more than five thou-
sand dollars, or imprisoned not more than fifteen years, or

both.

selling, con-
cng 3 etc., forged obli-

R. 8., 3. 5431.

Sec. 151. Whoever, with intent to de-
fraud, shall pass, utter, publish, or sell, or
attempt to pass, utter, publish, or sell, or

/*, Shall bring into the United States or any
156 Place subject to the jurisdiction thereof, with
135, Intent to pass, publish, utter, or sell, or shall
© keep in possession or conceal with like in-
3o2, tent, any falsely made, forged, counterfeited,

28 Fed. Cas., 223; U. 8.
. , 4 Biss., “
38 Wo, Fer Res, OF altered obligation or other security of the
ii Ree: is'C8.. United States, shall be fined not more than
st; 3 ime3 five thousand dollars and imprisoned not
Kes hs SU 8° more than fifteen years.
$52; U. 8. aren oh ‘ed. Rep., 110; U. 8. ». Taranta, 74 Fed. Rep., 219; U. 8. ». Beebe, 149

Dp.

Taking impressions
of tools, implements,
ete.

Sec. 152. Whoever, without authority
from the United States, shall take, procure,
or make, upon lead, foil, wax, plaster,
paper, or any other substance or material,
Bich 367° Fre, AQ impression, stamp, or imprint of, from,
ead, MG, or by the use of any bedplate, bedpiece, die,
roll, plate, seal, type, or other tool, implement, instrument,
or thing used or fitted or intended to be used in printing,
stamping, or impressing, or in making other tools, imple-
ments, instruments, or things to be used or fitted or in-
tended to be used in printing, stamping, or impressing
any kind or description of obligation or other security of
the United States now authorized or hereafter to be author-
ized by the United States, or circulating note or evidence
of debt of any banking association under the laws thereof,
shall be fined not more than five thousand dollars or im-
prisoned not more than ten years, or both.

R. S., 8, 5432.
CRIMES.—Cu. 7. 663

Sec. 153. Whoever, with intent to de- unlawfully such impres:
fraud, shall have in his possession, keeping, *°*
custody, or control, without authority from z.g, .. 5433.
the United States, any imprint, stamp, or
impression, 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 purposes
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 imprisoned not
more than ten years, or both.

Sec. 154. Whoever shall buy, sell, ex- qfi¥imt sree fonds
change, transfer, receive, or deliver, any ™*°
false, forged, counterfeited, or altered obli- xg, «5434.
gation 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 true
and genuine, shall be fined not more than five thousand
dollars, or imprisoned not more than ten years, or both.

Sec. 155. Whoever, without authority ,Seyeune °° remor
from the United States, shall secrete within, ‘i's, priating bonds,
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 deposited by authority of the United States,
any bedpiece, bedplate, roll, plate, die, seal, type, or other
tool, implement, or thing used or fitted to be used in stamp-
ing 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, postage
stamp, revenue stamp, fractional currency note, or other
paper, instrument, obligation, device, or document, 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, embezzle, 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-

R. S., 8. 5453.
664 CRIMES.—Cu. 7.

tions, devices, or documents; or whoever, without such au-
thority, 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 prepared, issued, or
put in circulation on behalf of the United States as one of
the papers, instruments, or obligations hereinbefore named,
or printed or stamped, in whole or part, in the similitude
of any such paper, instrument, or obligation, whether in-
tended 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.

posamerteiting notes Sec. 156. Whoever, within the United

governments’ ____ States or any place subject to the jurisdiction
1, ops: BM 3 st; thereof, with intent to defraud, shall falsely
Supp, #20. ss make, alter, forge, or counterfeit any bond,

va Hoh,” certificate, obligation, or other security in
Nes, Fanci, Nee. imitation of, or purporting to be an imitation
Raw og; 1° Fed of, any bond, certificate, obligation, or other

security of any foreign government, issued
or put forth 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 decree of such foreign government;
or whoever shall cause or procure to be so falsely made,
altered, forged, or counterfeited, or shall knowingly aid or
assist in making, altering, forging, or counterfeiting, any
such bond, certificate, obligation, or other security, or
any such treasury note, bill, or promise to pay, intended
as aforesaid to circulate as money, shall be fined not more
than five thousand dollars and imprisoned not more than
five years.

notee tena, 4 «Sec. 157. Whoever, 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 pay-
ment or negotiation, 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 counter-
feited within the United States or not, shall be fined not

16 May, 1884, 23 Stat.
23, c. 52, 8. 2; 1
Supp., 429.
CRIMES.—Cu. 7. 665

more than three thousand dollars and imprisoned not more
than three years.

Sec. 158. Whoever, within the United ,,@pmvrfiting, note
States or any place subject to the jurisdic- ~%¢ May, 1884, 23 stat.
tion thereof, with intent to defraud, shall g7,%o5 5 * 3!
falsely make, alter, forge or counterfeit, or “{.g§ », Arjona, 120
cause or procure to be so falsely made, altered, °°. 4
forged, or counterfeited, or shall knowingly aid and assist
in the false making, altering, 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 cor-
poration being authorized by the laws of such country, shall
be fined not more than two thousand dollars and imprisoned
not more than two years.

Sec. 159. Whoever, within the United ,,,sssine such counter-
States or any place subject to the jurisdic- —
tion thereof, shall utter, pass, put off, or 1,1°,pi9% 138 28 Stat:
tender in payment, with intent to defraud, 5?”
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 counter-
feited within the United States or not, shall be fined not
more than one thousand dollars and imprisoned not more
than one year.

Sec. 160. Whoever, within the United ,f'7ms2,posesion
States or any place subject to the jurisdic- “*_
tion thereof, shall have in his possession any _ 1¢ may, 18s4, 23 Stat.
false, forged, or counterfeit bond, certificate, §,7%4%, °% * %
obligation, security, Treasury note, bill,
promise to pay, bank note, or bill issued by a bank or cor-
poration of any foreign country, with mtent to utter, pass,
or put off the same, or to deliver the same to any other per-
son 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.
666 CRIMES.—Cxu. 7.

pose ow “2 Sec. 161. Whoever, within the United
‘or such notes, bonds, States or any place subject to the jurisdic-
——————— tion thereof, except by lawful authority,
oop 85h 23 Sat; shall have control, custody, or possession of

Supp., 429. any plate, stone, or other thing, or any part
U. 8. » Arjona, 120 thereof, from which has been printed or may
Tet be printed any counterfeit note, bond, obli-

gation, 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
part thereof; or whoever shall make or engrave, or cause or
procure to be made or engraved, or shall assist in making 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 corporation; 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 security, 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 im-
pressions 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 years, or both.

diffecat maint! Sec. 162. Whoever shall so place or con-

nect 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 govern-
ment, 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 thou-
sand dollars, or imprisoned not more than five years, or
both.
CRIMES.—Cu. 7.

Sec. 163. 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 similitude of the gold or
silver coins or bars which have been, or here-

after may be, coined or stamped at the mints Boras,
and assay offices of the United States, or in §

resemblance or similitude of any foreign gold w
or silver coin which by law 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 the United ®
States or any place subject to the jurisdic- §
tion 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-

667

Counterfeiting gold or
silver coins or bars.

R. 8., 8. 5457.
16 Jan., 1877, 19 Stat.
i 228, c. 24; 1 Supp.,

U. §. ». Gardner, 10
Pet., 618; U. 8, 2. a
gold, 9 How., 5 60; U.

v. Petit, a U. §.,
429; Se % 7: 8., 157
U.'S, 8.0

$ "Nictean 23,
24 Fed, Caz., 1313; U.
. King, 5 McLean,
208, "26 Fed. Cas., 787;
U. a ‘ ‘Morrow,
C., 733, 26
Fed athe 38h: 0-8
soperat
Rep., 198; U. SS »
ane 6 Fed. Rep.,
861; 8. 2. ‘Abrams,
18 ed. ‘Rep., 823; U.S.,
v. Russell, 22 Fed. Rep.,
390; U. 8.0. Hopkins,
26 Fed. Rep., 443; U.S.
‘ Otay, 31 Fed. Wee

parte Water-
ma, a ee Re. ae

110; U. 8. : Bickle, 1
Mackey, 341

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 whomsoever,
shall be fined not more than five thousand dollars and im-
prisoned not more than ten years.

Sec. 164. Whoever shall falsely make,

Counterfeiting minor
coins.

forge, or counterfeit, or cause or procure to
be falsely made, forged, or counterfeited, or
shall willingly aid or assist in falsely making,

RB. S., 8. 5458.

Statler ». ae 8., ae
U. 8. 277; 8.
Bicksler, 1 ‘itackey, 3ai,

forging, or counterfeiting any coin in the re-

semblance 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 foreign place, or have in
his possession any such false, forged, or counterfeited coin,
with intent to defraud any person whomsoever, shall be
fined not more than one thousand dollars and imprisoned
not more than three years.
668 CRIMES.—Cu. 7.

or puitying, mutilating, Sec. 165. Whoever, fraudulently, by any
art, way, or means, shall deface, mutilate,
BS..8 $857. 99 sat, iMpair, diminish, falsify, scale, or lighten, or
L., 626, ©. 877; 2 Supp» Cause or procure to be fraudulently defaced,
mutilated, impaired, diminished, falsified,
Fo Rep. 30" ” scaled, or lightened, or willingly aid or assist
in fraudulently defacing, mutilating, im-
pairing, 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 subject to the jurisdiction thereof; or who-
ever shall pass, utter, 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, impaired,
diminished, falsified, scaled, or lightened, with intent to
defraud any person whomsoever, or shall have in his posses-
sion any such defaced, mutilated, impaired, diminished,
falsified, scaled, or lightened coin, knowing the same to be
defaced, mutilated, impaired, diminished, falsified, scaled,
or lightened, with intent to defraud any person whomsoever,
shall be fined not more than two thousand dollars and im-
prisoned not more than five years.

Debasement of coin-

age by officers of the SEC. 166. If any of the gold or silver coins
= struck or coined at any of the mints of the
RB, 0. 5480. 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 officer 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
CRIMES.—Cnh. 7. 669

such officer or person who commits any of the said offenses
shall be fined not more than ten thousand dollars and im-
prisoned not more than ten years.

Sec. 167. Whoever, except as authorized _ Milne or tng
by law, shall make or cause to be made, or 7“:
shall utter or pass, or attempt to utter or 2 S:8 5)
pass, any coins of gold or silver or other netal, » Sy, Gelegmp

or alloys of metals, intended for the use and $3,°"8 Wisi” aoa,

purpose of current money, whether in the #5%.,¢%% en, i
resemblance of coins of the United States or * * Gas, tits

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.

Sec. 168. Whoever, not lawfully author- 3.Making, or issuing
ized, shall make, issue, or. pass, or cause tO Rg.,502.
be made, issued, or passed, any coin, card, “y, s,s. Rousopu-
token, or device in metal, or its compounds, '™ % Fed. Rep. amr.
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 im-
prisoned not more than five years.

Sec. 169. Whoever, without lawful au- ,Connterfeiting, | ete.
thority, shall make, or cause or procure to 5.
be made, or shall willingly aid or assist in Ba 4b 3. a
making, any die, hub, or mold, or any part Su? 589
thereof, either of steel or plaster, or amy 1.0: of'péj, Rout
other substance whatsoever, in the likeness
or similitude, as to the design or the inscription thereon, of
any die, hub, or mold designated 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 who-
ever, without lawful authority, shall have in his possession
any such die, hub, or mold, or any part thereof, or shall per-
mit the same to be used for or in aid of the counterfeit-
ing of any of the coins of the United States hereinbefore
mentioned, shall be fined not more than five thousand dol-
lars and imprisoned not more than ten years,
670 CRIMES.—Cu. 7.
dig an tarteiting, ef» = Sec. 170. Whoever, within the United
States or any place subject to the jurisdic-
1 JO Esb, 1801, 26 Sat’ tion thereof, without lawful authority, shall
Supe 400 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
substance 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 foreign
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 imprisoned
not more than five years, or both.
having “in pomesion SEC. 171. Whoever, within the United
eri Unite dc. simi- States or any place subject to the jurisdiction
Seaetemns thereof, shall make, or cause or procure to be

ees Sor 8 Sat made, or shall bring therein, from any foreign

topes, ‘0.4, vas, country, or shall have in possession with
ob Ss intent to sell, give away, or in any other
pata” S177 Fed. manner, use the same, any business or pro-
fessional card, notice, placard, token, device,
print, ‘or impression, or any other thing whatsoever, in
the likeness or similitude as to design, color, or the inscrip-
tion 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 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 pre-
vent 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 legitimate publish-
ers and dealers in the same.
tions, weoutis aks, SEC. 172. All counterfeits of any obliga-
Perfo te be ee. tion or other security of the United States or
fa of any foreign government, or counterfeits
10 Feb., 1801, 26 Stat. Of any of the coins of the United States or of

L., 742, c. 127, 9. 4; 1 : “i
Stent any foreign government, and all material or
CRIMES.—Cu. 7. 671

apparatus fitted or intended to be used, or that shall
have been used, in the making of any of such counter-
feit 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 authorized 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 counter-
feits, 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.

Sec. 173. The several judges of courts ,,i%,° garb wer
established under the laws of the United {et ‘uspected, counter-

feit’ obligations, secu-
States and United States commissioners may Ties & com or me
upon proper oath or affirmation, within their *%frfeiture
respective jurisdictions, issue a search warrant 1,1448Ps 143} 28 Stat.
authorizing any marshal of the United States, 5>-®-
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 prob-
able 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 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 or of any State or Territory thereof, or of any bank
doing business under the authority of any foreign govern-
ment, 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 coun-
672 CRIMES.—Cu. 7.

terfeit money, coins, dies, hubs, molds, plates, and other
things, and all such counterfeit obligations so seized shall
be forfeited to the United States.

pind lating Pile ofex~ ~~ Sec. 174. In all cases where the charter

of any corporation which has been or may be
Bae o 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 know-
ingly 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 know-
ingly 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 corporation 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 ordinary transactions of
business, to utter as money or otherwise circulate the same.

Imitating national

banking notes with SEC. 175. It shall not be lawful to design,

ponted adrerieemanta engrave, print, or in any manner make or

execute, or to utter, issue, distribute, cir-

ea culate, or use any business or professional
U. 8. 1, Lacock, 29 card, notice, placard, circular, handbill, or
F p., 6

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
CRIMES.—Cnz. 7. 673

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.

Sec. 176. Whoever shall mutilate, cut, ,,Mutilating or defacing
deface, 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 ren-
der 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.

Sec. 177. It shall not be lawful to de- gJmitating United
sign, engrave, print, or in any manner make 73,,business cards on
or execute, or to utter, issue, distribute, cir-
culate, or use, any business or professional
card, notice, placard, circular, handbill, or y. gs. ». Laescki, 29
advertisement, in the likeness or similitude 7»
of any bond, certificate of indebtedness, certificate of de-
posit, coupon, United States note, Treasury note, gold cer-
tificate, silver certificate, fractional 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 hereto-
fore passed or which may hereafter be passed; or to write,
print, or otherwise impress upon any such instrument, obli-
gation, 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
provision of this section shall be fined not more than five
hundred dollars.

Sec. 178. No person shall make, issue, 9. %#%,,0f Jee, then
circulate, or pay out any note, check, mem- **¢
orandum, token, or other obligation for a less x. g,, «3583.
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 imprisoned not
more than six months, or both.

R. §., 8. 5189.

R.5§., 8. 3708.

43
674

Sec.
179.

180.
181.
182.
183.
184.
185.
186.
187.
188.

189.
190.
191.
192.
193.

194,

195.

196.
197.
198.
199.
200.
201.

202.
203.

CRIMES.—Cnu. 8.

CHAPTER EIGHT.

OFFENSES AGAINST THE POSTAL SERVICE.

Conducting post-office without
authority.

Illegal carrying of mail by car-
riers and others. ;

Conveyance of mail by private
express forbidden.

Transporting persons unlaw-
fully conveying mail.

Sending letters by private ex-
press.

Conveying of letters over post
routes.

Carrying letters out of the
mail on board of vessel.

When conveying letters by pri-
vate persons is lawful. _

Wearing uniform of carrier
without authority

Vehicles, etc., claiming to be
mail carriers.

Injuring mail bags, etc.

Stealing post-office property.

Stealing or forging mail locks
or keys.

Breaking into and entering
post-office.

Unlawfully entering postal car,
etc.

Stealing, secreting, embezzle-
ment, etc., mail matter or
contents.

Postmaster or employee of
postal service detaining, de-
stroying, or embezzling let-
ter, etc.

Postmaster, etc., detaining or
destroying newspapers.

Assaulting mail carrier with
intent to rob, and robbing
mail.

Injuring letter boxes or mail
matter; assaulting carrier,
etc.

Deserting the mail.

Delivery of letters by master
of vessel.

Obstructing the mail.

Ferryman delaying the mail.

Letters carried in a foreign
vessel to be deposited in a
post-office.

 

Sec.
204.

205.

206.
207.
208.
209.

210.
211.
212,
213.
214.

215.
216.

217.
218.
219.
220.
221.
222.
223.
224,
225.
226.
227.
228.
229.

230.
231.

Vessels to deliver letters at
post-office; oath.

Using, selling, etc., canceled
stamps; removing cancella-
tion marks from stamps, etc.

False returns to increase com-
pensation.

Collection of unlawful postage
forbidden.

Unlawful pledging or sale of
stamps.

Failure to account for postage
and to cancel stamps, etc.,
by officials.

Issuing money order without
payment.
Obscene, etc.,
mailable.
Libelous and indecent wrap-

pers and envelopes.

Lottery, gift enterprise, etc.,
circulars, etc., not mailable.

Postmasters not to be lottery
agents.

Use of mails to promote frauds.

Fraudulently assuming ficti-
tious address.

Poisons and explosives non-
mailable.

Counterfeiting money orders.

Counterfeiting postage stamps.

Counterfeiting, etc., foreign
stamps.

Inclosing higher class in lower-
class matter. ;

Postmaster illegally approving
bond, etc.

False evidence as to second-
class matter.

Inducing or prosecuting false
claims.

Missappropriation of postal
funds or property.

Employees not to become in-
terested in contracts.

Fraudulent use of official enve-
lopes.

Fraudulent increase of weight
of mail.

Offenses against foreign mail
in transit.

Omission to take oath.

Definitions.

matter non-
CRIMES.—Cnh. 8.

Sec. 179. Whoever, without authority
from the Postmaster-General, shall set up or
profess to keep any office or place of business

675

Conducting post-office
with authority.

BR. 8., 5. 3829.

bearing the sign, name, or title of post-office, shall be fined

not more than five hundred dollars.

Sec. 180. Whoever, 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

Illegal carrying by
carriers and others.

R. §., s. 3981.
4 A. G., 276; Op.

A. G. McVeagh, June
29, 1881.

imprisoned not more than thirty days, or both.

Sec. 181. Whoever shall establish any
private express for the conveyance of letters
or packets, or in any manner cause or pro-
vide for the conveyance of the same by regu- g
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
assist 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 3;,°

construed as prohibiting any person from re-

ceiving and delivering to the nearest post- §

office, postal car, or other authorized deposi-

tory for mail matter, any mail matter prop- }

erly stamped.

Sec. 182. Whoever, being the owner,
driver, conductor, master, or other person
having charge of any stagecoach, railway car,
steamboat, or other vehicle or vessel, shall

Conveyance of mail
by private express for-
bidden.

R. S., 8. 3982.
3 Mar., 1879, 20 Stat.
L., att a: 180, s. 1; 1

Supp., 245.
Pie, 1884, 23 Stat.

L., 8, c. 9; 1 Supp., 423
U. 8 2 Bromley, 12 12

a 24 Fed. Cas. 761;

g. v Gray, 3 Hag,
Reg. v. 'S., 227, 26 Fed.
Cas., 18; U. S. 9. H

Fed. Cas., 75; "OLS. te
Kimball, 7 Law Rep., 32.
26 Fed. Cas., 782; U. 8. 2.
Kochersparger, 9 Am. is
Reg., 145, 26 Fed. Cas.,
8 es U.S. 0. Pomeroy, 3
. Leg. Obs., 143, 27
Fed. Cas., 588; "U. 8. 0
Thompson, 9 Law Rep.,
451, 28 Fed. Cas., 97;
. 5. 2. Express Co., 5
Biss., 91, 28 Fed. Cas.,
352; Blackham 0. Gres-
ham, 16 Fed. Rep., 609;
Easson, 18 Fed.

9, 4 A. ee
349; 14 A. G. Op., 152;
19 A. G. Op., 670.

Teaneper ting persons
unlawfully conveying
mail.

R. §., s. 3983.

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 possession
of the same for the purpose of conveying them, contrary to
law, shall be fined not more than one hundred and fifty

dollars.
676 CRIMES.—Cu. 8.

vepunding letters by Prt Sec, 183. Whoever shall transmit by pri-

vate express or other unlawful means, or de-

Hope liver 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.

pout aeying letters over Sec, 184. Whoever, being the owner,
“Rs.e3085, Oriver, conductor, master, or other person
A, O40 15m ibid, having charge of any stagecoach, railway car,
7471 & gee BH steamboat, or conveyance of any kind which
oa a1; 8 ol. Ca regularly performs trips at stated periods on

any post route, or from any city, town, or
place to any other city, town, or place between 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 ar-
ticle carried at the same time by the same stage coach, rail-
way car, or other vehicle, except as otherwise provided by
law, shall be fined not more than fifty dollars.

ofthe mail "on bord Sec. 185. Whoever shall carry any letter

vente or packet on board any vessel which carries

R.8., 8. 3986, 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.

letters by mee pee = SEC. 186. Nothing in this chapter shall
pa bel be construed to prohibit the conveyance or
eine ae transmission of letters or packets by private
*4-G.0p.15°. hands without compensation, or by special
messenger employed for the particular occasion only.

Weari if :
ame sithort ae SEC. 187. Whoever, not being connected

eS with the letter-carrier branch of the postal

See service, shall wear the uniform or badge
which may be prescribed by the Postmaster-General, to be
worn by letter carriers, shall be fined not more than one

hundred dollars, or imprisoned not more than six months,
or both.
CRIMES.—Cnh. 8. 677

Sec. 188. It shall be unlawful to paint, ,, ychicle,ste. claiming
print, or in any manner to place upon or at-
tach 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, receiver, lessee, or
managing operator thereof, who shall cause, suffer, or per-
mit 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.

Sec. 189. Whoever shall tear, cut, or Jing mail bags,
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 to rob or steal any such mail, or to
render the same insecure, shall be fined not more than five
hundred dollars, or imprisoned not more than three years,
or both.

Sec. 190. Whoever shall steal, purloin, ,,Steetine Postotfice
or embezzle any mail bag or other property ———-————
in use by or belonging to the Post-Office
Department, or shall appropriate any such yy. g, ». Witliams, 5
property to his own or any other than its Fe yfep. U8
proper use, or shall convey away any such PP.”
property to the hindrance or detriment of the public service,
shall be fined not more than two hundred dollars, or im-
prisoned not more than three years, or both.

Sec. 191. Whoever shall steal, purloin, ;,a@0ig0rforsizemail
embezzle, or obtain by any false pretense,
or shall aid or assist in stealing, purloining,
embezzling, or obtaining by any false pretense, any key
suited 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 receptacle

for the deposit or delivery of mail matter; or whoever

R. 8., ». 3979.

R. 8., 8. 5476.

R. S., 8. 5475.

R.&., ». 5477.
678 CRIMES.—Cxu. 8.

shall knowingly and unlawfully make, forge, or counterfeit,
or cause to be unlawfully made, forged, or counterfeited, any
such key, or shall have in his possession any such mail lock
or key with the intent unlawfully or improperly 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 delivered, 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
manner authorized by the contract, or the agent of such
manufacturer, shall be fined not more than five hundred
dollars and imprisoned not more than ten years.

enteaking inte, md Sec. 192. Whoever shall forcibly break

RS. 5478. into or attempt to break into any post-office,
U. 8. ». Campbell, 16 OF any building used in whole or in part as
Fed. Rep dtr ps, a post-office, with intent to commit in such

Rep. 237 0g,» Wi post-office, or building, or part thereof, so
ou. 8. evese? used, any larceny or other depredation,
14 fed. Rep. ike Shall be fined not more than one thousand
Fol Roe sar coud, dollars and imprisoned not more than five

» U. 8, 112 Fed.
Rep., 342;_ U years.

» 8 o
Martin, 140 Fed. Rep., 256; Sorenson ». U. 8., 143 Fed. Rep., 820; 168 Fed. Rep., 785

pootal anu, entering = SEc. 193. Whoever, by violence, shall
“3 Mar., 1903, 32 Stat, ENter a post-office car, or any apartment in
*, 76, «1000.85: any car, steamboat, or vessel, assigned to the
Fel, Rep 221; U's. 4 USe Of the Mail Service, or shall willfully or
gi 100 Fed. Rep» maliciously assault or interfere with any

postal clerk in the discharge of his duties
in connection with such car, steamboat, vessel, or apartment
thereof, or shall willfully aid or assist therein, shall be fined
not more than one thousand dollars, or imprisoned not
more than three years, or both.

ponaning, eemeting. om ~~ SEC. 194. Whoever shall steal, take, or

eee abstract, or by fraud or deception obtain,
sao,” ™ °° 4% from or out of any mail, post-office, or station
CRIMES.—Cnh. 8.

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 remove from any such

letter, package, bag, or mail, any article or J.

thing contained therein, or shall secrete,
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 abstracted, as herein
described, knowing the same to have been so

stolen, taken, embezzled, or abstracted; or Uv.

whoever shall take any letter, 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 any post-office
or station thereof, or other authorized de-
pository, 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 uv.

design to obstruct the correspondence, or
to pry into the business or secrets of another,
or shall open, secrete, embezzle, or destroy
the same, shall be fined not more than two
thousand dollars, or imprisoned not more
than five years, or both.

U. 8. +. Hardyman,
U. 8, 158 0. 8

8 U. 8.,

632; Scott 9. Us 8. 172
. 8, 343; U. 8. 9

Beaty, Hempst., 487,

24 Fed. Cas., 1057; U. s

v. Bellew, 2 Brock.,

280, eet Cas., 10795

a, Bramham,
Micha “B57, _ 24 Hed.
Cas., 1220; U. S. 0
Brent, a Int. Rev.
Rec., 54, 24 Fed. Cas.,
1225; a S. v. Cotting-
ham, 2 Blatch., 470, a

Fed.’ Cas., 673; U. 8.
Driscoll, 1 Lowell, 303,
25 Fed. Cas., 914; U. S.
v. Fisher, 5 McLean,
23, 25 Fed. Cas., 1086;
U. 8. 2 Foye, 1 Cur-
tis, 364, 25 Fed. Cas.,
1198; U. §. 2. Golding,
2 Cranch C. C., 212, 25
Yod. Cas., Je U.S.
3’ Sawy.,
556, 26 Fed Cas., 156;
8. ienther, 13
Blatch., sam 26 ‘Fed.
Cas., 610; U.S. 0. Keene,
5 McLean, 509, 26 Fed.
Cas, 694; U. S. #.
Lancaster, 2 McLean,
481, 26 Fed. Cas., 854;
U.S. 2 Laws, 2 Lowell,
115, 26 Fed. ‘Cas., , 892;
U. & 2 M: 3

Blatch.,
Cas.,
Martin, 2 McLean, 256,
26 Fed. Cas., 1183; U. s.
vw Montgomery, 3 Sawy.,
544, 26 Fed. Cas., 1296;
U.S. 0. Nott, 1 McLean,
499, 27 Fed. Cas., 189;
8. 1. Okie, 5 Biatch.,
nae, 27 Fed. Cas., 231;
U.S.t. Oliver, 4 L. "Rep. ay
191, - Hed, Cas., 36

‘Parsons,
Biateh, 27 Ved.
Cas., 451; US oo
Patterson, 6 McLean;
466, 27 Fed. Cas., 466;
U.S. 2. Pearce, "2 Me
Lean, 14, 27 Fed. Cas.,
480; U. S. ». Pelletreau,
14 Blatch., 126, 27 Fed.

Cas., 485; U.S. ». Pond, 2 Curtis, 265, 27 Fed. Cas., 590; U. S. ». Sander, 6 McLean, 598, 27 Fed.
Cas., 949; U.S. 2. Tanner, 6 MeLean, 128, 28 Fed. Cas., 12; U.S. 9. Taylor, 1 Hughes, 514, 28

Fed. Cas., 19; U.S. ». Whittier, 5 Dill., 35, 28 Fed. Cas., 591; U.S. ». Baugh, 1 Fed. Rep.
U.S. 2. Hamil , 886; U.S.

ton, 9 Fed. Rep., 442; U. 'B.2 . Wynn, 9 Fed. Rep.

v. McCready, it ed,

Fe
Rep., 225; U. 8. 1. Blackman, ‘17 Fed. Rep, 837; New Gileane "Nat. Bank v. Merchant, 18 et

Rep. ig 847:
Rapp, 30 Fed. Rep., 818; Re Burkhart, 33 Fed. Rep., 2

. 0. Holmes, 40 Fed. Rep.

0; U.S. ». ee
49 Fed. Rep, 891; U.S. ». Byrne, 44 ed Re

p., 188; U.S. 2.

475; U.S. ». Safford, 66 Fed. Rep., 942; U. S. 2.

man, 94 Fed. Rep., 486. U.S.

U.S. ». Hilbury, 29 Fed. Rep., 705; U.S. e Thompson, 29 Fed. Rep., 706;
5; U. 8. ». Gruver, 35 Fed. Rep.,
v. Denicke, 35 Fed. ‘Rep. 407; U.S. "Mathews, 35 Fed. Rep., 890; U. 8. 2. Jolly, 37 ed.
ek U.S. 0. Taylor, 37 Fed. Rep, 200; us ee v. Wight, 38 Fed. Rep., 108; U. a ». Clarke, 40

mda ed
Bithea, 44 Fed. Rep., 802; U.S. ». Mulholland, 50 Fed. Rep. ae v. S. 2. Delany, 5 Fed.
Thomas, 69 Fed. Rep., 588; U. S.
Fed. Rep., 566; U. S. 2. Jones, 80 Fed. Rep., 513; U.S. 2. Tee, 90 Fed. Rep., 256; U.
». Trosper, 127 Fed. Rep., 476; U. 8. 2. Meyers, 142

52; Walster 2.
Rep., 593;

2
a
Fed.

907; Brown ». U. s, 148 Fed. Rep., 379; U.S. ». Bullington, 170 Fed. Rep., 121.
680

Postmaster or em-
ployee of postal serv-
ice detaining, deatroy-
ing, or embezzling let-
ter, ete.

ee 5., ss. 3800, 3891,

CRIMES.—Cu. 8.

Sec. 195. 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 intrusted 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,

Kerr, 159 Fed. Rep.,
185; ‘Shaw o Pay 8., 165

5 messenger, agent, or other person employed
Fed. Rep., 17

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 let-
ter, postal card, package, bag, or mail; or shall steal, ab-
stract, 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 imprisoned not more
than five years, or both.

tap autmaster, ete de Sec. 196. Whoever, being a postmaster
mere or other person employed in any department

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, em-
bezzle, 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 thereof, shall be fined not more than
one hundred dollars, or imprisoned not more than one year,
or both.

R.5., 8. 5471.

a oeattion ce ca SEC. 197. Whoever shall assault any per-
and robbing son having lawful charge, control, or custody

R. 8., sa. 5472, 473. 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 imprisoned not more than ten
years; and if in effecting or attempting to

Harrison

163, U. &., 140; U 8. =
Hare, 2 Wh. Cr. Cas.,
283, 26 Fed. Caa., 148;
U. 8. ». Wilso mB Baldw.

78, 38 “Fed. ae 699
U. 8. ». Reeves, 38 Pot
Rep., 404; U. 8. ». Bow-
man, 5 Pac. Rep., 333.
CRIMES.—Cu. 8. 681

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 subsequent offense, shall be
imprisoned twenty-five years.

Sec. 198. Whoever shall willfully injure, 22s, si pone
tear down, or destroy any letter box, pillar ing carrier, ete.’
box, lock box, lock drawer, or other receptacle 21 Abts iso, aati,
established or approved by the Postmaster- 15 {Mit iM, 32 stet
General for the safe deposit of matter for the 2170. 1008,..3.
mail or for delivery, or any lock or similar device belonging
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 willfully injure, deface, or destroy any mail
matter deposited in 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 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 maliciously
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 assist in any offense
defined in this section, shall be fined not more than one thou-
sand dollars, or imprisoned not more than three years, or
both.

Sec. 199. Whoever, having taken charge —Pesrting the mall.
of any mail, shall voluntarily quit or desert pga. saz.
the same before he has delivered it into the
post office at the termination of the route, '%*%
or to some known mail carrier-messenger, agent, or other
employee in the postal service authorized to receive the same,
shall be fined not more than five hundred dollars, or im-
prisoned not more than one year, or both.

Sec. 200. The master or other person hav- Delivery of Jetters by .
ing charge or control of any steamboat or
other vessel passing between ports or places ® ®: * 5%7-
in the United States, arriving at any such port or place where
there is a post-office, shall deliver to the postmaster or at
the post-office within three hours after his arrival, if in the
682 CRIMES.—Cn. 8.

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 re-
ceive from the postmaster two cents for each letter or pack-
age 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 having charge
or control of such steamboat or other vessel, shall be fined not
more than one hundred and fifty dollars.

_Obstructing the mail Sec. 201. Whoever shall knowingly and

Bab fe He: willfully obstruct or retard the passage of the
Wali, “igo” He ‘bee mail, or any carriage, horse, driver, or carrier,

we ago C's ese, OF car, steamboat, or other conveyance or
i.

Hughes, “i457 hea, VESSel carrying the same, shall be fined not
Gistk, 19 Phi’ 4f¢, 96 More than one hundred dollars, or imprisoned
Hees, bez. “@* C: S99; NOt more than six months, or both.

26 Fed. Cas., 193; U. 8. ». Harvey, 1 Brunner, 540, 26 Fed. Cas., 206; U. 8. 2. McCracken, 3

Hughes, 544, 26 Fed. Cas., 1049; U. 8. 2. Stevens, 2 Haskell, 164, 27 Fed. Cas., 1312; U. 8. ». De

Mott, 3 Fed. Rep., 478; U. 8. ». Claypool, 14 Fed. Rep., 127; U. 8. 2. Kane, 19 Fed. Rep., 42;

U.S. v. Woodward, 44 Fed. Rep., 592; U.S. v. Sears, 55 Fed. Rep., 268; U. 8. ». Thomas, 55 Fed.

Rep, 380; U. 8 2. Cassidy, 67 Fed. Rep., 698; Salla ». U. 8., 104 Fed. Rep., 644; Conrad ». U. S.,

. Rep., 798.

mopman delaying the ~= § Sec, 202. 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.

Foe vesd to be SEC. 203. All letters or other mailable
deposited in a post matter 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 own-
ers or consignees of the vessel, shall be subject to postage
charge, whether addressed to any person in the United States
or elsewhere, provided they 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
letters relating to the vessel or any part of the cargo thereof
as may be directed to the owners or consignees, shall be de-
livered into the United States post-office by the master or

other person having charge or control of such vessel when

R.8., 5. 4016.
CRIMES.—Cxu.. 8. 683

arriving, and be taken from the United States post-office
when departing, and the postage justly chargeable by law
paid thereon; and for refusing or failing to do so, or for con-
veying 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 thousand dollars.

Sec. 204. No vessel arriving within a ,yci*? ® dm
port or collection district of. the United
States shall be allowed to make entry or ag, s.3088,
break bulk until all letters on board are
delivered to the nearest post-office, and the master or other
person having charge or control thereof has signed and sworn
to the following declaration before the collector or other
proper 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 control
of such vessel who shall break bulk before he has delivered
such letters shall be fined not more than one hundred dollars.

Sec. 205. Whoever shall use or attempt vig cule, ete
to use in payment of postage, any canceled Bons, cancelation
postage stamp, whether the same has been ————___—_
used or not; or shall remove, attempt to sof) Sg 3% 9%
remove, or assist in removing, the canceling 1.2 iat 1878, ae L
or defacing marks from any postage stamp, Supp., 249.
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 such 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 willfully shall remove
684 CRIMES.—Cu. 8.

from any mail matter any stamp attached thereto in pay-
ment 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 per-
son 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.

cree eons. Sec. 206. Whoever, being a postmaster or

other person employed in any branch of the
side ee See's. 1, postal service, shall make, or assist in making,

1 Supp, 18696, 24 Stat, OF Cause to be made, a false return, statement,

TB fio,” * * 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
respect of the business or operations of any post-office or
other branch of the postal service, for the purpose of fraud-
ulently increasing his compensation or the compensation of
the postmaster or any employee in a post-office; or whoever,
being a postmaster or other person employed 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.

Collection of ;
postagefotidien " Sec. 207. 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 im-
prisoned not more than six months, or both.

U._8. » Snyder, 14
Fed. Rep., 554.

R. 8., 8. 3899.
CRIMES.—Cnu. 8. 685

Sec. 208. Whoever, being a postmaster ,.uopmful plsdeine or

or other person employed in any branch of “Rg...

the postal service, and being intrusted with guy oe Sa
the sale or custody of postage sramps, stamped 15%». 186.

envelopes, or postal cards, shall use or dispose gu gh.u 8.0 wit

of them in the payment of debts, or in the l= 2 (ied Rep,

purchase of merchandise or other salable # ¥ ep a
87 Fed.

articles, or pledge or hypothecate the same, Siamp hi
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 Depart-
ment for like quantities; or sell or dispose of, or cause to be
sold or disposed of, postage 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.

Failure to account for

Sec. 209. Whoever, being a postmaster jcstage and to cancel
or other person engaged in the postal service, “#2? °%» by officials.
shall collect and fail to account for the postage 1.2393", 1813: 20 Stat.
due upon any article of mail matter which he SY”
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.

Sec. 210. Whoever, being a postmaster nee
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.

RB. S., 8. 4030.
686

Obscene, etc., matter
nonmailable.

B. §., 8. 3893.

26 Sept., 1888,
Stat. L., e c. 1039, 8. 2;
1 Supp., 621

ay, 1908, 35 Stat.
L., 416, ¢. 206,

Ex a oncom.
96 U. S., Re Ra-
pies. w3'U. " 110; U.

Chase, 135 U.
8., 255, 27 Fed. ue

807; Grimm 9
156 U. &., 804, 50 Fed.
Rep., 528; Rosen -
U. &., 161 U. 8., 2
Swearingen v U. 3°
161 U. §8., 446; An-
drews ». U. 8., 162
U. 8., 420, 58 Fed. Rep.,
768; Price ic U. 8, 165
U. 8, Dunlop.
U.S., "165 U. 8., 486; Re

oa 591; a 8. 0. Wile

U. 8. 2. Rapp, 80
Fed Rep. 818; Ex parte
Doran, 32 Fed. Rep., 76;
U. Bh 32

Fed. hen fot U.S.
Harmon, 34 Fed. ac
872, 45 Fed. Rep., 414
50 Fed. Rep., a U.8
2. Mathias,
Rep., 802; Uae Clark,
U. 8 o Dave 38 Fed.
0. avis,
Rep. 8.

CRIMES.—Cu. 8.

Sec. 211. Every obscene, lewd, or las-
civious, and every filthy, book, pamphlet,

® picture, paper, letter, writing, print, or other

publication of an indecent character, and
every article or thing designed, adapted, or
intended for preventing conception or pro-
ducing abortion, or for any indecent or im-
moral use; and every article, instrument,
substance, drug, medicine, or thing which is
advertised or described in a manner calcu-
lated 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 printed card, letter, circular,
book, pamphlet, advertisement, or notice of

Fed, 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

Fel. obtained or made, or where or by whom any
>, act or operation of any kind for the procur-
. Ing or producing of abortion will be done or
' performed, or how or by what means con-

ception may be prevented or abortion pro-

asa, Cuced, 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,
medicine, or thing may, or can be, used or
applied for preventing conception or pro-

98 ducing abortion, or for any indecent or im-

moral purpose; and every description calcu-
. lated to induce or incite a person to so use
or apply any such article, instrument, sub-
stance, drug, medicine, or thing, is hereby
declared to be non-mailable matter and shall
not be conveyed in the mails or delivered

Fed. from any post-office or by any letter carrier.

Whoever shall knowingly deposit, or cause to
be deposited for mailing or delivery, anything
CRIMES.—Cxu. 8.

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 aid-
ing in the circulation or disposition thereof,
shall be fined not more than five thousand
dollars, or imprisoned not more than five
years, or both.

p., 768;
Warner, 59 Fed. Rep., 355; U.S. ». Jarvis, 59 Fed. Rep., 357; U. S. ». Nathan, 61 Fed. naps
Fuller, 72 Fed. Rep., 771; U.S. ». Reid, 73 Fed.
289; U.S. ». Lamkin, 73 Fed. Rep., 459; U. S. v. Janes, 74 Fed. Rep., 545; U.

U. 8. ». Ling, 61 Fed. Rep., 1001; U. S. 2.

687

Clarke, 38 Fed. Rep.
500, 732, 40 Fed. Rep.,

Fed. Rep., 918; U. S. 2.
Males, 51 Fed. Rep., 41;
U. 8. ». Wilson, 58 Fed.
Re U. S33

, 936;
Rep.,
. 8. 0, Brazeau, 78

Fed. Rep., 464; Safter v. U. 8., 87 Fed. Rep., 329; U. S. ». Tubbs, 94 Fed. Rep., 356; U. 8. ».

Moore, 104 Fed. Rep., 78; U.S. ». Clifford, 104 Fed. Rep., 29
ae ¢ S. ». Wyatt, 122 Fed. Rep., 316; U
‘ed.
U.S8., 142 Fed. Rep., 57; Demolli ». U. S., 144 Fed. Rep., 363;
Lee . U. 8., 156 Fed. Rep., 948; Hanson ». U. §., 157 Fed.

6; De Gignac v. U.S., 113 Fed. Rep.,
.S. 2. Harris, 122 Fed. Rep.. 551; Harvey v. U. 8., 126
ep., 357; U. $0. Moore, 129 Fed. Rep., 159; U. 8. ». Pupke, 133 Fed. Rep., 248; Burton ».

Rinker v. U.S., 151 Fed. Rep., 755;
‘ed. Rep., 749; U.S. ». Musgrave, 160 Fed.

Rep., 700; Shepard ». U. S., 160 Fed. Rep., 584; U.S. ». Somers, 164 Fed. Rep., 259; McFadden
2. U.S., 165 Fed. Rep., 51; U. 8. 2. O’Donnell, 165 Fed. Rep., 218; U.8. v. Benedict, 165 Fed. Rep.,

221; Barnes v. U. S., 166 Fed. Rep., 113; Knowles ». U.

Sec. 212. All matter otherwise mailable
by law, upon the envelope or outside cover
or wrapper of which, or any postal card
upon which, any delineations, epithets, terms,
or language of an indecent, lewd, lascivious,
obscene, libelous, scurrilous, defamatory, or
threatening character, or calculated by the
terms or manner or style of display and
obviously intended to reflect injuriously 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.

170 Fed. Rep., 409.

Libelous and _ inde-
cent envelopes and
wrappers.

26 Sept., 1888, 25 Stat.
L., 496, c. 1039, s. 1; 1
Supp., 621. .

‘U. 8. ». Smith, 11
Fed. Rep., 663; Ex
pares Doran, 32 Fed.

p., 76; U. S. ». Bar-
ber, 37 Fed. Rep., 55;
U. §. ». Davis, 38 Fed.
Rep., 326; U. S&S a
Bayle, 40 Fed. Rep.,
664; U.S.» Brown, 43
Fed. Rep., 135; U. S. 2.
Gee, 45 Fed. Rep., 194;
U. §. ». Elliott, 61 Fed.
Rep., 807; U. & ou
Jarvis, 59 Fed. Rep.,

7; U. 8. 2. Simmons,

35)

61 Fed. Rep. 640;
U. S. o. Smith, 69 Fed.
Rep., 971; U. S&S ».
Dodge, 70 Fed. Rep.,
235; U. S._». Burnell,
75 Fed. Rep., 824;
Re Barber, 75 Fed.
Rep., 980.

Whoever shall know-

ingly deposit or cause to be deposited, for mailing or de-
livery, 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 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 imprisoned not more than five years, or both.

Sec. 213. No letter, package, postal card,
or circular concerning any lottery, gift enter-
prise, or similar scheme offering prizes de-

Lottery, gift enter-
prise, etc., circulars, etc.,
not mailable.

RB. 6., 5. 3804.
688

19 , 1890, ae eat
te 4 so 908, a. 1; 1

Bape, 604 ‘1805, 28 Stat.
L., Oe » 6 1;
Supp., 435.

Ex parte Jackson,

96 U.S., 727; Re Rapier,
143 'U. B, io: Horner

U. 8., 570,
ac-

Parsons,
z Blat, i, = Fed.

tae B. ch
. Weed ees

U. 8. ‘ Moore Me ped
’ U. 8. ». Dau-

CRIMES.—Cu. 8.

pendent in whole or in part upon lot or
chance; and no lottery ticket or part thereof,
or paper, certificate, or instrument purport-
ing 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, pamphlet, or publi-
” cation of any kind containing any advertise-
d, ment of any lottery, gift enterprise, or scheme
of any kind offering prizes dependent in whole
. or in part upon lot or chance, or containing
3 any list of the prizes drawn or awarded by

Rep, Means of any such lottery, gift enterprise,

‘ed.

, 458; ” MoeDoncli
"8, 63 Fed. Rep.

426; UB, McDonald,
65 Fed. ‘Rep., 486;
U. 8. », Fulkerson, 74
Fed. Rep., 619; Hoover
D. 4, MoCheaey,, 81, 81 Hed.

Geena 121 wfed

Rep., 180; U. 8.

Irvine, 156 Fed. hep.

a Fitzsimmons +. U.
., 156 Fed. Rep., 439.

y 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 con-
veyed 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 car-
ried 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 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 delivered by mail to
the person to whom it was addressed.

Sec. 214. Whoever, being a postmaster

or other person employed in the postal serv-
ice, shall act as agent for any lottery office,

Postmasters not to be
lottery agents.

R. 8.,8. 3851,
CRIMES.—Cnu. 8.

689

or under color of purchase or otherwise, vend lottery tickets,
or shall knowingly send by mail or delivery any letter, pack-
age, postal card, circular, or pamphlet advertising any lot-
tery, gift enterprise, or similar scheme, offering prizes de-
pending in whole or in part upon any lot or chance, or any
ticket, certificate, or instrument representing any chance,
share, or interest in or dependent upon the event of any lot-
tery, gift enterprise, or similar scheme offering prizes de-
pendent in whole or in part upon lot or chance, or any list
of the prizes awarded by means of any such scheme, shall

be fined not more than one hundred dollars,
not more than one year, or both.

Sec. 215. Whoever, having devised or
intending to devise any scheme or artifice to
defraud, or for 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 obli- ;
gation or security of the United States, or of
any State, Territory, municipality, company,
corporation, or person, or anything repre-
sented to be or intimated or held out to be
such counterfeit or spurious article, or any
scheme or artifice to obtain money by or
through correspondence, by what is com-
monly 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 ci- %

gars,’ or any other names or terms intended
to be understood as relating to such counter-
feit or spurious articles, shall, for the purpose
of executing such scheme or artifice or at-
tempting s0 to do, place, or cause to be placed
any letter, postal card, package, writing,

circular, pamphlet, or advertisement, whether 14%

addressed to any person residing within or

aa

or imprisoned

Use of mails to pro-
mote frauds.

R.§., 8. 5480.

2 Mar., 1889, 25 Stat.
L., 873, c. 393, s. 1; 1
Supp., 694.

Re Henry, 123 U. S.,
372; U. S. ». Hess, 124
U. §&., 483; Stokes ».
U. §., 157 U. 8, 187;
Streep 0. U.S. 1600
128; Durland »o U. s?
161 U. fi 306; Brand
0.U.S.,4 p., 394;
us 8. v. uNye.d Tea “Rep. eS

». Jones, 10
Ry ae 469; U.S.
Stickle, ib Fed. Rep.
798; U. S. ‘ aes 17
Fed. Rep., 72; U. S. 2.
Fleming, 18 Fed. Rep.,
907; U. 8. v. Martin, 28
Fed. Rep., 812; U. 8. v.
Wooten, 29 Fed. Rep.
702; Re ene 30 Fed.
Rep., Ee 8.
Eeedinge 33 Fi ed. Rep.,
469; U.S. Watson, 35
Fed. Rep., 358; U.S. ».
Mitchell, 36 Fed. Rep.,
492; U. S. ». Ried,
Fed. Rep., 134; U.S. ».

8

45 Fed. Rep., 561; U. 8.
», Beatty, 60 Fed.' Rep.,
40; Weeber ». U. S., 62
Fed. Rep., 740; U. S. ».
Harris, 68 Fed. Rep., 348;
U. 8. ». Beach, 71 Fed.

‘ed. Rep.,
634; Tingle ». U. 8., 87
Fed. Rep., 320; U. 8. »
Sauer, 88 Fed. Rep., 249;
U.S. 1 Fed.

. ». Loring, 9
Rep., 881; Te G. Op.,
18; 20 = G. Op., 296;
U. S., 109
Fed. "Rep oe Packer
# Us Be ed. Rep.,
690 CRIMES.—Cnu. 8.

$08; Larkin U.S” outside the United States, in any post-office,

Fost, 118 Kod, Rep foa’ or station thereof, or street or other letter box

ian 18 Ped ha 78; of the United States, or authorized deposi-

Fain” a Mibs > tory for mail matter, to be sent or delivered
V.8,!20 Fed: Bep-.1; by the post-office establishment of the United
Rea Rep 280; Betton States, or shall take or receive any such there-
Wea Res: too,0's-», from, whether mailed within or without the

Ryan, 138 Fed. o*8 United States, or shall knowingly cause to
tage eee 8 Rat. be delivered by mail according to the direc-
BP it ted Hon, sa, tion thereon, or at the place at which it is
iy vet directed to be delivered by the person to
Fol Ben” oss; US, Whom it is addressed, any such letter, postal
fet te, tg t33 card, package, writing, circular, pamphlet,
Fed, Rep., 551; Ballet or advertisement, shall be fined not more than
S80; Betts 2 oe Mepe. One thousand dollars, or imprisoned not more
Ben ons: : 8,188 Fed. than five years, or both.
ats Ped. Reps > 337; Post 2,08. 195 Fed. Rep. 1: Ewing «. U8. 186 Fed. Rep, 63: Booth
2. U. 8, 139 Fed. Rep., 252; U. 8. », Etheredge, 140 Fed. Rep., 376; Brown ». U. 8., 1
Rep., 60; Runble ». U. 3, 143 Fed. Rep., 772; U. 8. ». Francis, it Fel Hep, 520; ae
U.S8., 146 Fed. Rep., on ‘Brooks 9. U. 8., 146 Fed. Rep., 223; U. 5.0. White, 150 Fed. Rep., 379;
Van Deusen ». U. 8, Fed. Rep, 980; Walker ». U. 8., 152 Fed. Rep., 111; Francis 9. U.8.,
152 Fed. Rep., 155; Halls U8. 62 Fed. Rep., 420; Gourda’ in 2. U. 8., 154 U.S, 453; Dalton
x ae 8., 154 Fed. Rep., 461; Beas U. 8., 154 Fed. Rep., 836; U. 8. ». Dexter, 154 Fed. Rep.,

90; Faulkner 2. U.S., 167 7 Fed. Rep. 840; U. 8. ». Raish, 163 Fed. Rep., 911; U. 8. 2. McVicker,
tee Fe Rep., 894; Lemon ». U. 8 ., 164 Fed. Rep., 953; U.8. Smith, 166 Fed. Rep., 958; U. 8.
3. McCrory, 175 Fed. Rep., 802.
foe audulently assuming = Sec. 216. Whoever, for the purpose of

conducting, promoting, or carrying on, in

1. gare ay oe any manner, by means of the post-office es-
BU Dp OO. tablishment of the United States, any scheme
or device mentioned in the section last preceding, or any
other unlawful business whatsoever, shall use or assume,
or request to be addressed by, any fictitious, false, or
assumed title, name or address, or name other than his
own proper name, or shall take or receive from any post-
office of the United States, or station thereof, or any other
authorized 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 pro-

vided in the section last preceding.

nor aeng And explosives == Sec. 217. All kinds of poison, and all ar-

ticles and compositions containing poison,
Pee are 20 Sat and all poisonous animals, insects, and rep-

ee) 180, «201 tiles and explosives of all kinds, and inflam-
CRIMES.—Cu. 8. 691

mable materials, and infernal machines, and 12,4%, (Be jst.

mechanical, chemical, or other devices or

compositions which may ignite or explode, and all dis-
ease 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 otherwise 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, nor by any letter carrier; but the Post-
master-General may permit 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, vinous, malted, fermented, or other intoxi-
cating 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 de-
posited 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, anything declared by this section
to be non-mailable, unless in accordance with the rules and
regulations hereby authorized to be prescribed by the Post-
master-General, shall be fined not more than one thousand
dollars, or imprisoned not more than'two years, or both;
and whoever shall knowingly deposit or cause to be depos-
ited 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 per-
son to whom it is addressed, anything declared by this sec-
tion 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 thousand
dollars, or imprisoned not more than ten years, or both,
692 CRIMES.—Cu. 8.

ongeunterfeiting money = Sec. 218. Whoever, with intent to de-
"ps.2543, fraud, shall falsely make, forge, counterfeit,
2 dap» Je, °4 St engrave, or print, or cause or procure to be
Supp. 918. 138s, 25 falsely made, forged, counterfeited, engraved,
stat bn 13° * * or printed, or shall willingly aid or assist in
8 2 Mons, ie falsely making, forging, counterfeiting, en-
Batch. ee pee graving, or printing, any order in imitation
Hibbs, 26 Fed. Rep; of or purporting to be a money order issued
Fed. Rep, 678 Woot by the Post-Office Department, or by any
Rens, 766 xives ¢.- 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 there-
for 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 certificate of ident-
ification thereon; or shall falsely alter, or cause or pro-
cure 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 indorsement
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, 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, knowing the same to contain
any forged or counterfeited signature to the same, or to any
material indorsement, receipt, or certificate thereon, or
material alteration therein unlawfully made, or to have been

unlawfully issued without previous payment of the amount
CRIMES.—Cxh. 8. 693

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.

Sec. 219. Whoever shall forge or counter-  4Soumteitine postage
feit any postage stamp, or any stamp printed “Rs...
upon any stamped envelope, or postal card, “qs, Patetreau, 14
or any die, plate, or engraving therefor; or Bst4s,228 27 fed:
shall make or print, or knowingly use or sell, posmith 4 Fed. Rep.
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 postal 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 author-
ized and provided by the Post-Office Department, without
the special authority and direction of said Department;
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, or counter- ,.coimterfeiting, ete.
feit, 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.

Sec. 221. Matter of the second, third, or ;, R7sing, heher-class
fourth class containing any writing or printing
in addition to the original matter, other than 3 Fz. T3305 stat,
as authorized by law, shall not be admitted #,” & * 7 1 Supp.
to the mails, nor delivered, except upon pay-
ment of postage for matter of the first class, deducting
therefrom any amount which may have been prepaid by
stamps affixed, unless by direction of the Postmaster-General

such postage shall be remitted. Whoever shall knowingly

R.S., 8. 5465.
694 CRIMES.—Cu. 8.

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.

arottmaster ileeally SEC. 222. Whoever, being a postmaster,
shall affix his signature to the approval of
Boe a 1estat, ANY bond of a bidder, or to the certificate of
ky 28 f 498 * 1251 sufficiency of sureties in any contract, before
the said bond or contract is signed by the
bidder or contractor 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.

senntlie jevidence a6 to = Sec. 223. Whoever shall submit or cause

to be submitted to any postmaster or to

p25 gine eae at the Post-Office Department or any officer of

Supra i005, 33 stat, the postal service, any false evidence relative
Bee SO eo to any publication for the purpose of securing
the admission thereof at the second-class rate, for trans-
portation in the mails, shall be fined not more than five
hundred dollars.

ing eg oe Provew’ = Sec. 224. Whoever 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 indemnity for the
loss of any registered letter, parcel, package, 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 know-
ingly 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
CRIMES.—Cu. 8. 695

application for indemnity, shall be fined not more than five
hundred dollars, or imprisoned not more than one year,
or both.
Sec. 225. Whoever, being a postmaster ,,Missppropriation of
or other person employed in or connected *
with any branch of the postal service shall _™-8: #4. 4063.

loan, use, pledge, hypothecate, or convert pei'rs,’10 *

to his own use, or shall deposit in any bank, ,,4: ee Tove, aoe
or exchange for other funds or property, 43 ' "Fed. Reps
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 authorized officer or agent, shall be deemed
guilty of embezzlement; and every such person, as well as
every other person 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 indictment
against any person for such embezzlement, it shall be prima
facie evidence of a balance against him to produce a tran-
script 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 Postmaster-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 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 purpose of remitting
surplus funds from one post-office to another.
696 CRIMES.—Cu. 8.
coninployess not to be- Sec, 226. Whoever, being a person em-
en ployed in the postal service, shall become
R.8., 8. 412. interested in any contract for carrying the
mail, or act as agent, with or without com-
pensation, 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 one year, or both.

cial aadulent use of off- Sec. 227 Whoever shall make use of any

official envelope, label, or indorsement author-
Io 3, 106, 9 Sat’ ized by law, to avoid the payment of postage
ta 1870, 20 Stat, OF registry fee on his private letter, packet,

Pee iets 180, 9, 20. package, or other matter in the mail, shall

188, 0.204, 8 3 ‘tan’e; be fined not more than three hundred dollars.

Stat. L., 1122, ¢. 611; Supp., 500.

ween eaatmerease of =~ Sc. 228. Whoever shall place or cause

to be placed any matter in the mails during
side 2 ti, Oi ? the regular weighing period, for the purpose
Hed ihe (0 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
imprisoned not more than five years, or both.

Offenses against for-

eign mail in Cansit, SEc. 229. 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 depredation 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 indictment 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.

Omission to take oath.
R. B., 8. 3832,

R.8., 8. 4013.

Sec. 230. Every person employed 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.
CRIMES.—Cu. 8-9. 697
Sec. 231. The words “postal service,” Pesto

wherever used in this chapter, shall be held and deemed to
include the ‘“‘Post-Office Department.”

CHAPTER NINE.

OFFENSES AGAINST FOREIGN AND INTERSTATE COMMERCE.

Sec. ; Sec.

232. Dynamite, etc., not to be car- 239. Common carrier, etc., not to
ried on vessels or vehicles collect purchase price of
carrying passengers for hire. interstate shipment of in-

233. Interstate Commerce Commis- toxicating liquors.
sion to make regulations for 240. Packages containing intoxicat-

transportation of explosives.
234, Liquid nitroglycerin, etc., not
to be carried on certain ves-

ing liquors shipped in inter-
state commerce to be mark-

nal cak sented ed as such.

s and vehicles. . s :

235, Marking of packages of explo- | 24+ Importation of, certain, wild
sives; deceptive marking. : a apa

236. Death or bodily injury caused 242, Transportation of prohibited
by such transportation. animals.

237. Importation and transporta- 243. Marking of packages.
tion of lottery tickets, etc., 244, Penalty for violation of three
forbidden.

238. Interstate shi + of int preceding sections.
. rstate shipment of intox- : %
icating liquors; delivery of 245. Importation and transporta

to be made only to bona ae of obscene, etc., books,
fide consignee. .

 

Sec. 232. It shall be unlawful to trans- ,,Dymmite, ct. not

be carried on ves-

port, carry, or convey, any dynamite, gun- S% ,%,,voticles cary-
powder, or other explosive, between a place

in a foreign country and a place within or § fy. ssas’sssen
subject to the jurisdiction of the United ™ B64, B34, 81.
States, or between a place in any 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 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 vehicle small arms ammuni-
tion 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
698 CRIMES.—Cx. 9.

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 that 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 pas-
senger equipment vessels or vehicles.

canterstate Commerse Sec. 233. The Interstate Commerce Com-
regulations for t= mission shall formulate regulations for the
safe transportation of explosives, which shall
ib Mee" i908'aeerat, De binding upon all common carriers engaged
1L., 655, ¢. 284,82. in interstate or foreign commerce which trans-
port 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 material when offered
is in proper condition to transport. Such regulations, 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 until reversed, set aside,
or modified.
eteiauid nitroglycerin, §=§ «Sec, 234. It shall be unlawful to trans-
on "ean vewels and Hort, carry, or convey, liquid nitroglycerin,
fulminate in bulk in dry condition, or other
1 380 ets like 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 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 noncontiguous to but subject to
the jurisdiction thereof, on any vessel or vehicle of any de-
scription operated by a common carrier in the transporta-

tion of passengers or articles of commerce by land or water.
CRIMES.—Cu. 9. 699

Sec. 235. Every package containing ex- ,,Markine of packages
plosives or other dangerous articles when ™*
presented to a common carrier for shipment 3 May, 1908, 35 Stat.
shall have plainly marked on the outside 1% 34s. 4 6.
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
transportation, any explosive, or other dangerous article, un-
der any false or deceptive marking, description, invoice,
shipping order, or other declaration, or without informing
the agent of such carrier of the true character thereof, at
or before the time such delivery or carriage is made. Who-
ever shall knowingly violate, or cause to be violated, any
provision of this section, or of the three sections last pre-
ceding, 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.

Sec. 236. When the death or bodily injury jup*8.2, Peay, is:
of any person is caused by the explosion of "ration.
any article named in the four sections last pg a.sss¢.
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 transported, 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.

Sec. 237. Whoever shall bring or cause ,ampristion and trans

to be brought into the United States or any SMe
place subject to the jurisdiction thereof, from 1,7 93°, 437 72 S%
any foreign country, for the purpose of dis- S7-#
posing of the same, any paper, certificate, or y SMe chan tons
instrument purporting to be or to represent ae 2. U. &, 188
a ticket, chance, share, or interest in or de- 95 Fed. Rep. 453; U8
pendent upon the event of a lottery, gift Rep. 61
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
700 CRIMES.—Cn. 9.

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
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 interest in or dependent upon, the event of any such
lottery, gift enterprise, or similar scheme, or any advertise-
ment 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, advertisement, 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.

inte citate shipment of Sec. 238. Any officer, agent, or employee

oaly ts bons fre we of any railroad company, express company,
ene: 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,
fermented, 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 noncontiguous to
but subject to the jurisdiction thereof, or from any foreign
country into any State, Territory, or District of the United

States, or place noncontiguous to but subject to the juris-
CRIMES.—Cu. 9. 701

diction thereof, shall be fined not more than five thousand
dollars, or imprisoned not more than two years, or both.

Common carrier, etc.,

Sec. 239. Any railroad company, express not fo collect purchase
company, or other common carrier, or any Pitt of jnterstate ship”
other person who, in connection with the !™
transportation of any spirituous, vinous, malted, fer-
mented, 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
jurisdiction 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, 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 completing the sale thereof, saving only in the
actual transportation and delivery of the same, shall be
fined not more than five thousand dollars.

Sec. 240. Whoever shall knowingly ship js 3028, comping
or cause to be shipped, from one State, Pped, in , interstate
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 sub-
ject to the jurisdiction thereof, or from any foreign
country into any State, Territory, or District of the United
States, or place noncontiguous to but subject to the juris-
diction thereof, 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 con-
signee, the nature of its contents, and the quantity con-
tained 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 proceed-
ings as those provided by law for the seizure and forfeiture
of property imported into the United States contrary to

law.
702 CRIMES.—Cu. 9.

wirportation of certain Sec. 241. The importation into the United

reptiles forbidden. States, or any Territory or District thereof,
1 2% May, 1900. 31 Sst of the mongoose, the so-called “flying foxes”
Sapp. 1174. or fruit bats, the English sparrow, the star-

ling, and such other birds and animals as the Secretary
of Agriculture may from time to time declare to be in-
jurious to the interests of agriculture or horticulture, is
hereby prohibited; and all such birds and animals shall,
upon arrival at any port of the United States, be de-
stroyed 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: Provided, That nothing in this section shall
restrict the importation of natural history specimens 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 authorized to make
regulations for carrying into effect the provisions of this
section.

biamsPortation of pro” Sec, 242. It shall be unlawful for any
"35 May, 1900, 31 Stat. PeTSOn to deliver to any common carrier for
£1886, 5 * 3:2 transportation, or for any common carrier to
ro Se” Smith 116 transport from any State, Territory, or
Tome Mt Bet District of the United States, to any other
Epa St State, Territory, or District thereof, any
foreign animals or birds, the importation of which is pro-
hibited, 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 pro-
hibited 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, transporta-
tion, or sale of birds or bird plumage manufactured from

the feathers of barnyard fowls,
CRIMES.—Cu. 9. 703
Sec. 243. All packages containing the _Msrkise of packages.
dead bodies, or the plumage, or parts thereof, 1,25, 1200, 31 Stat,
of game animals, or game or other wild 5 "7+
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 of the contents, may be
readily ascertained on an inspection of the outside of such
package.

Sec. 244. For each evasion or violation ,,2nalty for viclation of
of any provision of the three sections lasts ————————
preceding, the shipper shall be fined not more ,,7S°% 1300) 31 Git
than two hundred dollars: the consignee 5% 17.
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. carrying or
transporting the same in violation of said sections shall be
fined not more than two hundred dollars.

Sec. 245. Whoever shall bring or cause asks cee, Wut eens
to be brought into the United States or any BOM
place subject to the jurisdiction thereof, from La 812 Tea eek
any foreign country, or shall therein know- f reb,, 1005, 33 stat.
ingly deposit or cause to be deposited with % 7% 50
any express company or other common carrier, for car-
riage 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 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, pamph-
let, picture, paper, letter, writing, print, or other matter of
indecent 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, pamph-
let, advertisement, or notice of any kind giving information,
directly or indirectly, where, how, or of whom, or by what
means any of the hereinbefore-mentioned articles, matters,
704 CRIMES.—Cu. 9-10.

or things may be obtained or made; or whoever shall know-
ingly take or cause to be taken from such express company
or other common carrier any matter or thing the depositing
of which for carriage is herein made unlawful, shall be fined
not more than five thousand dollars, or imprisoned not more
than five years, or both.

-

CHAPTER TEN.

THE SLAVE TRADE AND PEONAGE.

Sec. Sec.
246. Confining or detaining slaves 259. Forfeiture of interest in vessels
on board vessel. transporting slaves.
247. Seizing slaves on foreign shore. 260. Seizure of vessels engaged in
248. Bringing slaves into the United the slave trade.
States. 261. Proceeds of condemned vessel,
249. Equipping vessels for slave how distributed.
trade. 262. Disposal of persons found on
250. Transporting persons to be board seized vessel.
held as slaves. 263. Apprehension of officers and
251. Hovering on coast with slaves crew.
on board. 264. Removal of persons delivered
252. Serving in vessels engaged in from seized vessels.
the slave trade. 265. To what port captured vessels
253. Receiving or carrying away sent,
any person to be sold or 266. When owners of foreign vessels
held as aslave. shall give bond.
254. Equipping, etc., vessel for slave 267. Instructions to commanders
trade. of armed vessels.
255. nee orllas building, 268. Kidnaping.
uipping, etc. ; 7
256. Forfeiture of vessel transport- 269. Holding or returning persons
ing slaves. to peonage.
257. Receiving persons on board to 270. Obstructing enforcement of
be sold as slaves. preceding section.
258. Vessels found hovering on 271. Bringing kidnaped persons into
coast. United States.

 

ing mains or detain §=—§ Sec. 246. Whoever, being of the crew or

oe ship’s company of any foreign vessel engaged

R.8., 6. 5375. in the slave trade, or being of the crew or
1 ogann,18Gr, 29 Stat ship’s company of any vessel owned wholly
BUDD or in part, or navigated for or in behalf of

U.S.» Corie, 234, ANY citizen of the United States, forcibly
668; U.'8. ». Gordon, § CONfines or detains on board such vessel any
pach Be, i person as a slave, or, on board such vessel,
Br ped Gon, cae offers or attempts to sell as a slave any such
CRIMES.—Cu. 10. | 705

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.

' Sec. 247. Whoever, being of the crew or szas,save o for
ship’s company of any foreign vessel engaged ————————
in the slave trade, or being of the crew or  { 53° 380" 29 stat.
ship’s company of any vessel owned in whole §3,2°%5¢" 2% & % 2
or part, or navigated for, or in behalf of, —————————
any citizen of the United States, lands from uh ".°R? oe
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.

Sec. 248. Whoever brings within the juris- ,,Brmging Slaves into
diction of the United States, in any manner “g5,a 5377...
whatsoever, any person from any foreign “Us ». Libby, 1
kingdom or country, or from sea, or holds, Po. de >
sells, or otherwise 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.

Sec. 249. Whoever builds, fits out, equips, gaippine vessels for
loads, or otherwise prepares, or sends away,
either as master, factor, or-owner, any vessel,
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 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, he imprisoned not more than
seven years.

45

R. B., 8. 5378.
706 CRIMES.—Ca. 10.

fo eeneporting persons = Sec. 250. Whoever, within the jurisdic-
——_——_—— tion of the United States, takes on board, re-
ceives, or transports from any foreign king-
dom, 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.

aenoveringon coast with = Sec. 251. Whoever, being the captain,
——_————— master, or commander of any vessel found in

TE Eat 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 pur-
pose 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. &., 8. 5379,

oe in vemels em” = Sec. 252. 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 imprisoned
not more than two years.

R. 8., ss. 5381, 5382.

ing ociving or carry SEC. 253. Whoever, being the master or
te be sold or held 28 8 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 juris-
diction 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.

foe quiring, ete., vessel Sec. 254. No person shall, for himself or
for another, as master, factor, or owner,

R. 8., 8, 5551. a ai .
—__——— build, fit, equip, load, or otherwise prepare
agen g inally, 9 Wheat., * aye de

8. 2. Gooding, ANY vessel in any port or place within the
a eae: 460; The . Pera é
Slavers, 2° Wall., 350; Jurisdiction of the United States, or cause
U. 8. ». Brune, 2 Wall.,
it 204, 2 Fed. scat any vessel to sail from any port or place

a

Fed. Rep., 327. within the jurisdiction of the United States,

R. 8., 8. 5524.
CRIMES.—Cu. 10. 707

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.

Sec. 255. Whoever so builds, fits out, ,FPiY, “grams
equips, loads, or otherwise prepares or sends “*
away any vessel, knowing or intending that  a.g_ a sss2.
the same shall be employed in such trade or
business, 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.

Sec. 256. Every vessel employed in car- ,,Aavcitue of veel
rying on the slave trade or on which is re-
ceived 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 of holding such person to service or labor, shall, to-
gether 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.

Sec. 257. Whoever, being a citizen of the ,,2seivine, persons on
United States, takes on board, receives, or 2"
transports any person for the purpose of sell- pg. . 5884,
ing 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. 8., 8. 5553.
708 CRIMES.—Cu. 10.

om els found hovering = Sec. 258. Every vessel which is found in
———_———- any river, port, bay, or harbor, or on the

Ee Ag heater 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 effects on board
of her, be forfeited to the United States.

in recitare of mero’ §~—-s Sec. 259. It shall be unlawful for any
ae citizen of the United States, or other person
R. 8. ». 5556. 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 for-
eign country or place to another, and any such right or
property shall be forfeited, and may be libeled and con-
demned for the use of the person suing for the same. Who-
ever shall violate 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.

ene of reat ce = Sec. 260. The President is authorized,
when he deems it expedient, to man and em-
ploy 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 res-
idents of the United States, in contravention of laws
prohibitory of the same; and, in such case, he shall instruct
the commanders of such armed vessels to seize, take, and
bring into any port of the United States, to be proceeded
against according 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 pro-
visions of any act of Congress prohibiting the traffic in
slaves.

BR. S., s. 5557.
CRIMES.—Cu. 10. : 709

Sec. 261. The proceeds of all vessels, ,.2igcedsof condemned
their tackle, apparel, and furniture, and the ————————
goods and effects on board of them, which * %»* 5558.
are so seized, prosecuted, and condemned, shall be paid
into the Treasury of the United States.

Sec. 262. The officers of the vessel making Zi?! of ,Pasont
such seizure shall safely keep every person
found on board of any vessel so seized, taken, * 8+ * 55?
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.

Sec. 263. The commanders of such com- .A?egheasion of off-
missioned vessels shall cause to be appre-
hended 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 be, to the civil authority of the
Unite.t-States, to be proceeded against in due cours: of law.

Sec. 264. The President is authorized to gf7moy" of, Persons
make such regulations and arrangements a3 "** :
he may deem expedient for the safe keeping, x, «. 5501.
support, and removal beyond the limits of
the United States of all such persons as may be so delivered
and brought within its jurisdiction.

Sec. 265. It shall be the duty of the ,cortst por sptued
commander of any armed vessel of the ae
United States, whenever he makes any
capture under the preceding provisions, to bring the vessel
and her cargo, for adjudication, 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.

Sec. 266. Every owner, master, or factor (qe oral! ae
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

R.5., s. 5560.

 

R.5S., 8. 5563.
710 CRIMES.—Cxu. 10.

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 other 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.

instructions to com- Sec, 267. The President is authorized to

wen issue instructions to the commanders of the
R.8., 6. 6567. 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 prosecuting
such trade to the United States for trial and adjudication.
Suneene: Sec. 268. Whoever kidnaps or carries
R.B., 8, 5525, 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 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.

Tea Sec 369. Whoever holds, arrests, returns,

R.8.,, 5. 6526. or causes to be held, arrested, or returned,

Clyatt ». U. 8, 197 OT in any manner aids in the arrest or return
Uae” po gkems! Of any person to a condition of peonage,
as ind Fee, is¢, Shall be fined not more than five thousand
U. 8.2 Bbehard, 127 dollars, or imprisoned not more than five
ein u.es ec, years, or both.

153 Fed. Rep., 801; U. 8. 0. Clement, 171 Fed. Rep., 974.

of pirating execution = Sic, 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.

R. §., 8. 5527.
CRIMES.—Cu. 10-11. 711

Sec. 271. Whoever shall knowingly and ,2zinging, kidnaped
willfully bring into the United States or *™
any place subject to the jurisdiction thereof, _ 23 june, 1974, 18 Stet.
any person inveigled or forcibly kidnapped in §3,2 4° “** 4?
any other country, with intent to hold such °
person so inveigled or kidnapped in confinement or to any
involuntary 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.

1

CHAPTER ELEVEN.

OFFENSES WITHIN THE ADMIRALTY AND. MARITIME AND
THE TERRITORIAL JURISDICTION OF THE
UNITED STATES.

Sec Sec.
272 Places within or waters upon 280. Seduction of female passenger
which sections of this chap- on vessel.
ter shall apply 281. Payment of fine to female se-
273 Murder duced; evidence required;
274, Manslaughter. limitation on indictment.
275. Punishment for murder; for 282. Loss of life by misconduct of
manslaughter. officers, etc., of vessels.
276. Assault with intent to commit 283. Maiming.
murder, rape, robbery, etc. 284, Robbery. aod
‘ 285. Arson of dwelling house.
277. Attempt to commit murder or 286. Arson of other buildings, etc.
manslaughter. 287. Larceny.
278. Rape. 288. Receiving, etc., stolen goods.
279. Having carnal knowledge of 289. Laws of States adopted for
female under sixteen. punishing wrongful acts, etc.

 

Src. 272. The crimes and offenses defined ,,Maritime and, tem
in this chapter shall be punished as herein *™e
prescribed: R.S., 8. 5389.

First. When committed upon the high
seas, or on any other waters within the Qj." % ® 27
admiralty and maritime jurisdiction of the
United States and out of the jurisdiction of any particular
State, or when committed within the admiralty and mari-
time jurisdiction of the United States and out of the juris-
712 CRIMES.—Cu. 11.
diction 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 corporation created by or under the laws of the
United States, or of any State, Territory, or District thereof.
4 Sept., 1890, 26 Stat.
L., 421, ¢. 874, 8. 1; 1
Supp., 799.

U.S. ». Rogers, 150
U. §., "949; Ex parte

Second. When committed upon any vessel
registered, licensed, or enrolled under the
laws of the United States, and being on a
Et A rt Rogers voyage upon the waters of any of the Great
“ fed, ep di “ret: Lakes, namely: Lake Superior, Lake Michi-
Rep., 145. gan, 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.

Third. When committed within or on
any lands reserved 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,
el. 17.

B. Boy = S070. Fourth. On any island, rock, or key,

Jones 9. U. 8, 137 U. containing deposits of guano, which may,
a at the discretion of the President, be con-
sidered as appertaining to the United States.

mee Sec. 273. Murder is the unlawful killing
BE, & i - of a human being with malice aforethought.
Fed: Gas GU 8» ~Every murder perpetrated by poison, lying

Holmes, 6 Wheat., 412;
U. 8. v. Rogers, 4 How.,
567; Ex parte Crow
Dog 109 U. 8., 556;

in wait, or any other kind of willful, deliber-
ate, malicious, and premeditated killing;

Cook ». U. 8., 138 U. 8.,
157; Ball Fd U. 8., 140
U. 8., ; St. Clair ».

; attempt to perpetrate any arson,

or committed in the perpetration of, or
rape,

U8. burglary, or robbery; or perpetrated from a

v. U. 8., 172 U. 8., 303;
Battle» U.S., 209 U. 8.,
; U. 8 ». Martin, 14
Fed. Rep., 817; U. 8.
pieseler, 37 Fed. “Rep.,
; U. 8. » Clark, 46
Fed Rep., 633; U. 8. ».
Hewecker, 79 vied. ed, Rep.
59; U. 8. 2.
Fed. Rep., 622; U. ak

Lewis, Lit Fed. Rep., 630; U. 8. ». Linnier, 125 Fed. Re
U.S. on Nae 149 Fed. Rep., 302; U.S. ». Battle, 154

(D.C

premeditated design unlawfully and mali-
ciously 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.

ep. 83; U.S. ». Tully, 140 Fed. Rep., 899;
‘ed, Rep., 540; U. 8. 9. Guiteau, 1 Mackey
CRIMES.—Cu. 11. 713

Sec. 274. Manslaughter is the unlawful Mansauebter.
killing of a human being without malice. ag, «ssa,

It is of two kinds: —_——

First. Voluntary—upon a sudden quarrel pf°pat 3,1) 8» 126
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.

Punishment for

Sec. 275. Every person guilty of murder wutder, for man
in the first degree shall suffer death. Every ‘2
person guilty of murder in the second degree zg. 5.5339, 5343,
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 manslaughter
shall be imprisoned not more than three years, or fined not
exceeding one thousand dollars, or both.

Sec. 276. Whoever shall assault another ,,.¢auf, with. intent

with intent to commit murder, or rape, "bb

shall be imprisoned not more than twenty ag, .. 5346.
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 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 im-
prisoned 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.

Sec. 277. Whoever shall attempt to com- ,,“%mpt to commit

mit murder or manslaughter, except as “ene
provided in the preceding section, shall be ™%*
fined not more than one thousand dollars and imprisoned
not more than three years.
‘

714 CRIMES.—Cu. 11.

es Sec. 278. Whoever shall commit the

Piet ieeosStt.L, crime of rape shall suffer death.
658, c. 120; 1 Supp., 641.

i eae a. Se. 279. Whoever shall carnally and

unlawfully know any female under the age
L658. 150 1 Bee, Of sixteen years, or shall be accessory to
Pale 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 im-

prisoned not more than thirty years.

peeduction of female Src. 280. 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 female passenger,
shall be fined not more than one thousand dollars, or im-
prisoned not more than one year, or both; but subsequent
intermarriage of the parties may be pleaded in bar of
conviction.

female seltost; eee SEC. 281. When a person is convicted of
required; imifation 0 4 viglation 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.

of He ent er de = Sec. 282. Every captain, engineer, pilot,

Chae, mace or other person employed on any steamboat
Sige eee or vessel, by whose misconduct, negligence,
R.8..8 or inattention to his duties on such vessel
ier 05,20 tat the life of any person is destroyed, and
————_———- every owner, charterer, inspector, or other

Fed. Rep, 8 U's public officer, through whose fraud, neglect,

yin. Bete hag Ca connivance, misconduct, or violation of law
20. 8,150 Fed. ep 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: Provided,

That, when the owner or charterer of any steamboat or

R. 8., #. 5349.

R. 8., ss. 5350, 5351.
CRIMES.—Cxu. 11. 715

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 willfully caused or allowed such fraud, neglect, con-
nivance, 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.

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 im-
prisoned not more than seven years, or both.

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.

Sec. 285. Whoever shall willfully and ,,4m" % dwelling
maliciously set fire to, burn, or attempt to “Rissa.
burn, or by means of a dangerous explosive “ja.c. op, 559.
destroy or attempt to destroy, any dwelling
house, or any store, barn, stable, or other building, parcel
of a dwelling house, shall be imprisoned not more than
twenty years.

Sec. 286. Whoever shall maliciously set ee oe ca
fire to, burn, or attempt to burn, or by any “R5,.538.
means destroy or injure, or attempt to destroy “Us ». Cardish, 143
or injure, any arsenal, armory, magazine, "Re %.
rope-walk, ship-house, warehouse, blockhouse, or barrack,
or any store-house, barn, or stable, not parcel of a dwelling
house, or any other building not mentioned in the sec-
tion last preceding, or any vessel built, building, or un-
dergoing 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,

Maiming.

R. 8., 8. 5348,

Robbery.
R. 8., 8, 5370.
716 CRIMES.—Ca. 11.

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.

Larceny.
R. S., 8. 5356.

Ex parte Crow pre
109 U. §., 556; U.
“Davis, 5 Mason, 356, 28
Fed. Cass ;'U.

784; U. 5. 0. Hamilton,
1 Mason, 152, 26 Fed.
Cas., 93; Zt 8. v. Jack-
son, "ON. Y. . Leg. Obs.,
3, 26 Fed. Cas., $58; U.
8. 0 Maxon, 5 Blatch.,
360, 26 ey Cas., 1220;
U. 8. ». Morel, 13 Am.
Jurist, ne 26 Fed.
Cas., 1310; Cochran 9.

U. S., 147 Fed. Rep.,
206.

Sec. 287.. Whoever shall take and carry
away, with intent to steal or purloin, any
personal property of another, shall-be pun-
> ished as follows: If the property 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 im-
prisonment for not more than ten years, or
both; in all other cases, by a fine of not
more than one thousand dollars, or by im-
prisonment 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 contingency 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.

Herning etc., stolen
goods

Sec. 288. Whoever shall buy, receive, or
conceal, any money, goods, bank notes, . or
other thing which may be the subject of

Bx arte. Crow Dog larceny, which has been feloniously taken,
10 eS PPe 44 nea, Stolen, or embezzled, from any other person,
SRE knowing the same to havebeen so taken,
stolen, or embezzled, shall be fined not more than one
thousand dollars and imprisoned not more than three
years; and such persom may be tried either before or after
the conviction of the principal offender.

Sec. 289. Whoever, within the territorial

R. 5., s. 5357.

Laws of States adopted

for punishing wrongful

acts, etc.

R.8.,
7 Tals, "1808, 30 Stat.
Tee 717, 8. 2; 2 Supp.,

U. S. oo
Cr., 32; U. 8. ». Paul,

6 Pet. 141; Ex parte

Biebold, 100'U. 8., 388;
Franklin ». U. 8., 216

Hudson, 7

limits of any State, organized Territory, or
district, but within or upon any of the places
now existing, or hereafter reserved or ac-
quired, 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
CRIMES.—Cu. 11-12. 717

committed or omitted within the jurisdiction RSs? Rica.
of the State, Territory, or District in which (3. 7s 3 oe
such place is situated, by the laws thereof peemiih.* Ped. Rep.
now in force would be penal, shall be deemed fj 22; g3, ue
guilty of a like offense and be subject to a

like punishment; and every such-State, Territorial, or District
law shall, for the purposes of this section continue in force,
notwithstanding any subsequent repeal or amendment thereof
by any. such State, Territory, or District.

CHAPTER TWELVE.

PIRACY AND OTHER OFFENSES UPON THE SEAS.

Sec. Sec. .
290. Piracy under the law of na- 301. Other persons destroying or

tions. attempting to destroy vessel
291. Mal-treatment of crew by offi- at sea.

cers of vessel. 302. Robbery on shore by crew of
292. Inciting revolt or mutiny on piratical vessel.

shipboard. 303. Arming vessel to cruise against
293. Revolt and mutiny on ship- citizens of the United States.

board. : 304. Piracy under color of a foreign
294. Seaman laying violent hands commission.

on his commander. 305. Piracy by subjects or citizens
295. Abandonment of mariners in of a foreign state.

foreign ports. 306. Running away with or yielding
296. Conspiracy to cast away ves- up vessel or cargo.

sel. 307. Confederating, etc., with pi-
297. Plundering vessel in distress, rates.

etc. 308. Sale of arms and intoxicants
298. Attacking vessel with intent forbidden in Pacific islands.

to plunder. 309. Offenses under preceding sec-
299. Breaking and entering vessel, tion deemed on high seas.

etc. 310. ‘Vessels of the United States”
300. Owner destroying vessel at sea. defined.

 

Sec. 290. Whoever, on the high seas, ofizy under the law

commits the crime of piracy as defined by “gs,a.sz0s.
the law of nations, and is afterwards brought 12532189 2 3%
into or found in the United States, shall be 5

imprisoned for life. Whee, ise Os’

Pirates, 5 Wheat., 184; The Three Friends, 166 U. &., 1; The Ambrose Light, 25 Fel. Rep., ‘408.

Sec. 291. Whoever, being the master or Mghirestment of crew by
officer of a vessel of the United States, on “gs, s.s38

the high seas, or on any other waters within Mies a, 29 Sat
the admiralty and maritime jurisdiction of Supp., 609.

the United States, beats, wounds, or without ps °uia"3"s Ae
718

den, 1 Sprague, 95, 24
Fed. Cas., 768; U. B. 2
Bennett, 3 Hughes, itt
24 Fed. Cas., an

». Collins, 2 Curtis,

25 Fed. Cas., 545; U. *
v. Cutler, 1 Curtis, 501,
25 Fed. Cas., 740; U.8. 2
Freeman, 4 "Mason, 505,
25 Fed. Cas., 1208; U. 8.
v. Taylor, 2 Sumn., 584,
28 Fed. Cas., 31; U. 8. ».
Winn, 3 Sumn., 209, 28
Fed. Cas., 733; j Re Smith,
13 Fed. Rep. U.S.
Trice, 30 Fed R ip, 490.

CRIMES.—Cx. 12.

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 Revised Statutes.

Inciting revolt or mu-
tiny on shipboard.

R. 8., 8. 5359.

U. 8. ». Kelly, 11

Wheat., 417; The Hi-
ja, 1 Sprague, 78,

12 Fed. Cas., 112; U. 8.

Gar Mason, 40:
28 Fed das. 3259; U. a
v. Givings, 1 Sprague,
75, 25 Fed. Cas., 1331;

Mother W tenn. 470, 26 Fed. Cas., 1207; U. 8. ». Morrison, 1 Sumn, 448,
Nye, 2 Curtis, 225, 27 Fed. Cas., 210; U. 8. 2. Roberts, 2 N. Y. Leg. Obs., 99.
822; U.8. ». Rogers, 3 Sumn., 342, 27 Fed.
966; U. 8. 2. Seagrist, 4 Blatch., 420, 27 Fed. Cas., 1002; U

U.S.

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 solicits, 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 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

s confines the master or other commanding

officer thereof, shall be fined not more than
one thousand dollars, or imprisoned not more

than five years, or both.

ae Fed. Cas., 1351;
, 27 Fed. Cas.
e, 5 Mason, 460, 27 Fed.

Cos, 800; U. 8, 2. Sav Cas.,
arp Pet m8 27 Fed.

Cas., 1041; U. 8, 2. Smith, 1 Mason, 147, 27 Fed. Cas, 1168; i. 3. 2. Smith, 3 Wash., 78, 27 Fed.
Cas., 1246; U. 8. ». Staly, 1 Wood & M., 338, 27 Fed. Cas., 1290; U. 8. 2. Stevens, 4 Wash., 547,

27 Fed. Cas., 1335, U. 8. ». Thompson, i Sumn.,

168, 28 Fed. Cas., 102; U. 8. ». a em

209, 28 Fed. "Cas., 733; U. 8. ». Btone, 8 Fed. Rep., 232; U.8. 9. Huff, 13 Fed. Rep., 630.

Revolt and mutiny on
shipboard.

R. 8., 8. 5360.

U. 8. » Borden
Sprague, 374, 24 aoe
BS, U.
Forbes, Crabbe, 553, 25
Fed, Cas., tae U. 8, 2.

oe rd 8
5 F - 1331; sth 8

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 com-
mand of such vessel from the master or
CRIMES.—Cu. 12. ~ 719

other lawful officer in command thereof, or Sg uaste}.4 Mashy £02
deprives him of authority and command on seyret aa
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.

Sec. 294. Whoever, being a seaman, lays ,.s¢ma aving Molent
violent hands upon his commander, thereby “R8.s.5300.
to hinder and prevent his fighting in defense 1°33.) 2 3%
of his vessel or the goods intrusted to him, 8%
is a pirate, and shall be imprisoned for Bald, 15,26 od. Cus,
life.

Sec. 295. Whoever, being master or com- Abandonment of mari
mander of a vessel of the United States, while “Rsjase.
aboard, maliciously and without justifiable Qiao» cuark, 1
cause forces any officer or mariner of such $yy*s, 18 Fed. Con,
vessel on shore, in order to leave him behind Bee et a
in any foreign port or place, or refuses to #2 Sor7y%g 2? Red:
bring home again all such officers and ma- #% 6.27983, S447
riners of such vessel whom he carried out Rugzles, 5 Mason, ce
with him, as are in a condition to return Chinese laborers 13 Fed.
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. °-

Sec. 296. Whoever, on the high seas, or ,,commincy to cast
within the United States, wilfully and cor- “Rs.ssae.
ruptly conspires, combines, and confederates “VU. § a. Cole, 5 Me
with any other person, such other person {7p )%,75 "Hho"
being either within or without the United Mctes, 274 26 Fed
States, to cast away or otherwise destroy
any vessel, with intent to injure any person that may
have underwritten or may thereafter 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 de-
720 CRIMES.—Cu. 12.

stroyed, with the intent hereinbefore mentioned, shall be
fined not more than ten thousand dollars and imprisoned
not more than ten years.

Plundering vessel in

didisess, att Sec. 297. Whoever plunders, steals, or
—+—__———— destroys any money, goods, merchandise, or
B.Gae, OO. other effects, from or belonging to any vessel
U. 8 » Coombs, 12 10 distress, or wrecked, lost, stranded, or

ke, Bald 18 Sour. cast away, upon the sea, or upon any reef,

eT ‘spraue i, Shoal, bank, or rocks of the sea, or in any

z Hed, Cas. 5 540; U: other place within the admiralty and mari-
yer, O40, 27 Red. Ces time jurisdiction of the United States, shall
7 gs eR toa’ Rep, De fined not more than five thousand dollars.
ae and imprisoned not more than ten years;
and whoever willfully 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 shipwreck,
shall be imprisoned not less than ten years and may be

imprisoned for life.

sntincking veel with Sec. 298, Whoever, upon the high seas

or on any other waters within the admiralty
and maritime jurisdiction of the United

U. 8.» Stone, 8 Fed. States, by surprise or by open force, ma-
Heli aa liciously attacks or sets upon any vessel be-
longing 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 years.

weenafing and entering = 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 fel-
ony, 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.

B-5., s. 5361.

R. 8., 8. 5362.
CRIMES.—Cu. 12.

Sec. 300. Whoever, upon the high seas
or on any other waters within the admiralty
and 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 mer-
chant that may have goods thereon, or any

721

Owner destroying ves-
sel at sea.

R. 8., 8. 5365.
6 Aug., 1894, 28 Stat.
ee ¢. 227; 2 Supp.,

U. §. » Johns, 4
Dall., 412, 1 Wash., 363;
Uv. 8 2, Amedy, ui
Wheat., 329; U. 8.
Jacobson, 1 Brun. Col,
re 410, 26 Fed. Cas.,

7; U. So. Vanranst, 3
Wash. 146; U. 8.
Wilson, 3 Blatch., 435.

other owner of such vessel, shall be imprisoned for life or

for any term of years.

Sec. 301.
upon the high seas or on any other waters
within the admiralty and maritime jurisdic-
tion of the United States, willfully and cor-
ruptly casts away or otherwise destroys any
vessel of the United States to which he be- 3
longs, or, willfully, with intent to destroy
the same, sets fire to any such vessel, or oth-
erwise attempts the destruction thereof, shall
be imprisoned not more than ten years.

Sec. 302. Whoever, being engaged in any
piratical cruise, or enterprise, or being of the
crew of any piratical vessel, lands from such
vessel, and on shore commits robbery, is a
pirate, and shall be imprisoned for life.

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 concerned in furnishing,
fitting out, or arming, any private vessel of

Whoever, not being an owner, ;

Other persons destroy-
ing or attempting to
destroy vessel at sea.

R. 5§., ss. 5366, 5367.

6 ‘Aug., 1894, "98 Stat.
L., 233, ¢. 227, 8. 2; 2
Supp., 325.

U. S. 0. Vanranst, 3
wate 146, 28 Fed. Cas,
U. S. 2 Wilson, 3
Blaich, 435, 28 ae
Cas., 718; U.S. 2 M
Avoy, 4 Blatch., 418, 26
Fed. Cas., 1044.

Robbery on shore by
crew of piratical vessel.

R. S., s. 5371.

15 Jan., 1897, 29 Stat.
L., 487, c. 29, s. 2; 2
Supp., 538.

Arming vessel to cruise
against citizens of the
United States.

RB. §., 8. 5284.

U. 8. ». Howard, 3
Wash., 340, 26 Fed.
Cas., 390.

war or privateer, with intent that such vessel shall be em-
ployed 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 not more
then ten years. The trial for such offense, if committed
without the limits of the United States, shall be in the district
in which the offender shall be apprehended or first brought.

46
722

Piracy under color of a
foreign commission.

B.S.

15 fan iF 29 Stat.
L., 487, 29, 8s. 2; 2
Supp., 338,

U. S. « Palmer, 3
Wheat., 610; U. 8. ».
Baker, 5 Blateh., 6, 24
Fed. Cas., 962; U.S. 0
Hutchings, 1 Bron. Col,
Cas., 489, 26 Fed. Cas..
440; U. 8. ». Terrel,
Hempst., 413, 1 Fed.
Cas., 999.

Piracy by subjects or
citizens of a foreign
state.

RB. §., 8. 5374.
ae cen 1897, 29 Stat.
487, e 29, 8. 2;

Sip. 538.

CRIMES.—Cu. 12.

Sec. 304. Whoever, being a citizen of the
United States, commits any murder or rob-
bery, or any act of hostility against the
United States, or against any citizen thereof,
on the high seas, under color of any commis-
sion from any foreign prince, or state, or on
pretense of authority from any person, is,
notwithstanding the pretense of such au-
thority, a pirate, and shall be imprisoned for
life.

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.

Running away with or

yielding up vessel or
cargo.

R.5., 8. 5383.

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 or maritime jurisdiction of the
United States, piratically or feloniously runs
away with such vessel, or with any goods or
merchandise thereof, to the value of fifty
dollars, or who yields up such vessel volun-
tarily to any pirate, shall be fined not more than ten thousand
dollars, or imprisoned not more than ten years, or both.

U. 8. » Haskell, 4
Wash. 402, 26 Fed.
Cas., 307; U.S. ». Kess-
ler, Baldw., 15, 26 Fed.
Cas., 766; U.S. Tully,
1 Gol. 247, 28 Fed.

Confederating, ete.,
with pirates.

SEc. 307. Whoever attempts or endeavors
to corrupt any commander, master, officer, or
mariner to yield up or to run away with any

U. 8. » Howard, 3 Vessel, or with any goods, wares, or merchan-
oe ‘gh 2 ed. dise, or to turn pirate, or to go over to or con-
federate 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

R. 8., 8. 5384,
CRIMES.—Cu. 12. 723

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 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.

Sec. 308. Whoever, being subject to the ,,S#2 of grms.and in-
authority of the United States, shall give, ‘h¢ Pacific islands.
sell, or otherwise supply any arms, ammuNi- 14 Feb, 1902, 32 Stat.
tion, explosive substance, intoxicating 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 latitude, and the one hun-
dred and twentieth meridian of longitude west and one
hundred and twentieth meridian of longitude east of Green-
wich, 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 for-
feited. 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.

Sec. 309. All offenses against the provi- cee ein cece
sions of the section last preceding, committed ™"#*s*
on any of said islands or on the waters, rocks, — 14 Feb., 1902, 32 Stat.
or keys adjacent thereto, shall be deemed '**'8**
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 accordingly.

Sec. 310. The words “‘vessel of the United gan@asof the United
States”, wherever they occur 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.
724 CRIMES.—Cu. 13.

CHAPTER THIRTEEN,

CERTAIN OFFENSES IN THE TERRITORIES.

Sec. Sec.
311: Places within which sections 318. Fornication.

of this chapter shall apply. 319. Certificates of marriage; pen-
312. Circulation of obscene litera- alty for failure to record.
ie ae abortion: 320. Prize fights, bull fights, etc.
314. Unlawful cohabitation. 321. Definition of “pugilistic en-
315. Joinder of counts. counter.
316. Adultery. 322. Train robberies in Territories,
317. Incest. etc.

eons thin which Sec. 311. Except as otherwise expressly
shall apply: 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.

lteter promeniag SEC. 312. Whoever shall sell, lend, give
abortion; how punished. sway, or in any manner exhibit, or offer to

R.8., 8. 5389. sell, lend, give away, or in any manner ex-
; hibit, or shal] otherwise publish or offer to
Fo hep se "™ * 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, instru-
ment, or other article of an immoral nature, or any drug or
medicine, or any article whatever, for the prevention of con-
ception, 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, advertise-
ment, 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 imprisoned
not more than five years, or both.
CRIMES.—Cu. 13. 725

Sec. 313. Every person who has a hus- "vey:
band or wife living, who marries another, pz. 5, «5359,
whether married or single, and any man who 4.773" iy 2? fiat
simultaneously, or on the same day, marries °°?!
MORE than one woman, is guilty of polygamy, Cannon ». U. §., 116

and shall be fined not more than five hundred &,.5" 2, "5, Parte

dollars and imprisoned not more than five U. 58.2 Higginson, 46
_ 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 férmer 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 pronounced void by a valid decree of a competent court,
on the ground of nullity of the marriage contract.

Sec. 314. If any male person cohabitg _Uzswiul cohabitation.
<< Ma Ae 22 Stat.

with more than one woman, he shall be fined 1.°°31"@'a7's, 3; i
not more than three hundred dollars, or im- Sinn, 38h,"
ae v. U.S. 116

prisoned not more than six months, or both. y37"5s. i. hate
Snow, 120 U. S., 274; U.S. ». Higginson, 46 Fed. Rep., 750

Joinder of counts.

Sec. 315. Counts for any or all of the
offenses named in the two sections last pre- 22 Mar., 1882, 22 Stat.
ceding may be joined in the same informa- §i7339, °" * “ ?

tion or indictment.

Sec. 316. Whoever shall commit adultery
shall be imprisoned not more than three — 3 Mar, 1887, 24 stat.
years; and when the act is committed between §3,0%s9: 99% ® 35 1
a married woman and a man who is unmar-
ried, both parties to such act shall be deemed guilty of
adultery; and when such actis committed between a married
man and a woman who is unmarried, the man shall be deemed
guilty of adultery.

Sec. 317. Whoever, being related to an-
other person within and not including the 1.3 Mats, 1887, 24 Stat.

35, Ce 397, s. 4; 1
-fourth degree of consanguinity computed Sip. 568
according to the rules of the civil law, shall “3. Nason, 69 Fed.
marry or cohabit with, or have sexual inter- Rep. 712.
course with such other so related person, knowing her

or him to be within said degree of relationship, shall be

Adultery.
726 CRIMES.—Cxu. 13.

deemed guilty of incest, and shall be imprisoned not more
than fifteen years.

een Sec. 318. If any unmarried man or
3 Mar., 1887, 24 Stat. WOMAN commits fornication, each shall be
Biot ses, °°” * % 1 fined not more than one hundred dollars, or
imprisoned not more than six months.
ring tihcates fmt = Sec. 319. Every ceremony of marriage, or
pbieaesui in the nature of a marriage ceremony of any
3 Mar., 1887, 24 Stat. Kind, whether either or both or more of the
Tare Seu” % 19 Darties to such ceremony be, lawfully com-
petent to be the subjects of such marriage or
ceremony 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 officer,
priest, and person, by whatever style or designation called
or known, in any way taking part in the performance 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 county or district in which such cere-
mony 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 evi-
dence 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 marriages, whether lawful or
unlawful, by any evidence otherwise legally admissible for
that purpose. Whoever shall willfully 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.

et 2? Fehte, bull fights, §=— Sec, 320. Whoever shall voluntarily en-
v7 Boy PB gage in a pugilistic encounter between man
446. ” and man or a fight between a man and a bull
or any other animal, for money, or for other thing of
CRIMES.—Cu. 13. 727

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, shall be imprisoned not more than five years. The
provisions of this section shall apply only within the Terri-
tories of the United States and the District of Columbia.

Sec. 321. By the. term “‘pugilistic en- gogptplistic cneounter’
counter,”’ as used in the section last preceding, ————————_
is meant aay voluntary fight by blows by 1.7%» 8 ?4Sut-
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 wnich any
money or anything of value is bet or wagered, or to see

which any admission fee is directly or indirectly charged.

Sec. 322. Whoever shall willfully and  izain,,,7bberies im
maliciously trespass upon or enter upon any ——-————
railroad train, railroad car, or railroad loco- 12,37 137¢ 7 5+
motive, 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. Who-
ever shall willfully 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, conductor, 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 in any car thereof, or to commit any crime or
offense against any person or property thereon, shall be
fined pot 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 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 persoa.
728 CRIMES.—Cn. 14.

CHAPTER FOURTEEN.

GENERAL AND SPECIAL PROVISIONS.

Sec. Sec.
323. Punishment of death by hang- 332. Who are principals.
Ing. 333. Punishment of accessories.

324. No conviction to work corrup-

tion of blood or forfeiture of 334, Accessories to robbery or pir-
estate. gaeye
325. Whipping and the pillory abol- 335. Felonies and misdemeanors.
ished. 336. Murder and manslaughter;
326 Jurisdiction of State courts. place where crime deemed
327. Pardoning power. to have been committed.
328. Indians committing certain 337. Construction of certain words.

crimes; how punished.
329. Crimes committed on Indian
reservations in South Da-

338. Omission ofwords ‘‘hard labor”
not to deprive court of power

kota. to impose.

330. Qualified verdicts in certain 339. Arrangement and lzast Beatie
cases. ‘ of sections.

331. Body of executed offender may 340. Jurisdiction of circuit and dis-
be delivered to surgeon for trict courts.
dissection.

 

by tachment of death = Sec. 323. The manner of inflicting the

R.8,, 5. 6325, punishment of death shall be by hanging.

enue ction to work ==» Sec. 324. No conviction or judgment
forfeiture of estate. shall work corruption of blood or any for-
_%S8. 5 5826. feiture of estate.

U. S. v. Coppersmith, 4 Fed. Rep., 198.

hey taliaea the Sec. 325. The punishment of whipping
——_—_——— and of standing in the pillory shall not be

R. 5§., 8. 5327. inflicted.
coutisdiction of State = Sec. 326. Nothing in this Title shall be
B.S., 8. 6328, held to take away or impair the jurisdiction

Gross». North Caro. Of the courts of the several States under the
olina, 132 Usb. a. laws thereof.
372, 38 Fed. Rep., 101;  itegerald 0. ee 134 U. S., 377; Pettibone ». U.S., 148 U. S., 197;
Re Thomas, 173 U.§., 276, 87 Fed. se Ex te Houghton, 7 Fed. Rep., 657; Re Miller
42 Fed. Rep., 307; U.S. ». Gibson, BR ‘ed. Re} 833; Ex parte Geisler, 50 Fed. Rep.. a jie
Welch, 57 ed. Rep., 576; Re Waite, 81 Fed. Ran, 359; Ex parte Ballinger, 88 Fed.

Pardoning power. Sec. 327. Whenever, by the Semen of
R. 8., 8. 5330. any court or judicial officer of the United

+, U. 8, 95 U. States, in any criminal proceeding, any per-
8., 1 149; eh. G. Op., 281;
9A.G. Opi 478; 1A, G. son is sentenced to two kinds of punishment,
Op., 35; 14 A. G. Op., l
14 18 4. GOP. 119 the one pecuniary and the other corporal,
G. Op, 330, 668, the President shall have full discretionary
CRIMES.—Cu. 14. - 729

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.

Sec. 328. All Indians committing against 2dia28 committing.
the person or property of another Indian **
or other person any of the following crimes, — 3 Mar., 1885, 93 stat.
namely—murder, manslaughter, rape, assault 3% * 341 1 Supp.,
with intent to kill, assault with a dangerous ni, ee ee
weapon, arson, burglary, and larceny, within 5%? 3
any Territory of the United States, andeither py toy» Hopkin,
within or without an Indian reservation, shall Queainc” 43 Ge
be subject therefor to the laws of such Terri- #73 aS gee
tory 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
persons charged with the commission of said crimes, re-
spectively; 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 property of
another Indian or other person within the boundaries 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 manner, 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.

Sec. 329. The circuit and district courts ;,G7m*% committed on
of the United States for the district of South Seu Datos.
Dakota shall have jurisdiction to hear, try, 2 reb., 1903, 32 Stat.
and determine all actions and proceedings in Toy Ts 6 MBs cctn
which any person shall be charged with the 1° 18
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 con-
victed of murder, manslaughter, rape, arson, or burglary,

committed within the limits of any such _ reservation,
730 CRIMES.—Cu. 14.

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 upon any female Indian
‘within any such reservation shall be imprisoned at the
discretion of the court. Any person 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 chapter one hundred and six, Laws of South
Dakota, nineteen hundred and one.

conten es grits 2 Sec. 330. In all cases where the accused

is found guilty of the crime of murder in
1 et the first degree, or rape, the jury may
PAE ee 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 for life.
of, Hereettes = Sec. 331. The court before which any

livered to surgeon for narson is convicted of murder in the first
——_——— degree, or rape, may, in its discretion, add
eee to the judgment of death, that the body of

the offender be delivered to a surgeon for dissection; and
the marshal who executes such judgment shall deliver the
body, after execution, to such surgeon as the court may
direct; and such surgeon, or some person appointed by him,
shall receive and take away the body at the time of execution.

Who are printipals. Sec. 332. Whoever directly commits any
R. 8., ss, 5323, 6427.

Dolan. U. 8, 133 act constituting an offense defined in any

Bet. Rep aa law of the United States, or aids, abets,
counsels, commands, induces, or procures its commission,
is a principal. "

sonemithment of ace = Sec, 333. Whoever, except as otherwise

———— _ expressly provided by law, being an accessory
s6gg, ©” ® 5583, 5534 after the fact to the commission of any

offense defined in any law of the United
States, shall be imprisoned not exceeding one-half the longest
CRIMES.—Cu. 14. 731

term of imprisonment, or fined not exceeding one-half the
largest fine prescribed for the punishment of the principal,
or both, if the principal is punishable by both fine and im-
prisonment; or if the principal is punishable by death, then
an accessory shall be imprisoned not more than ten years.

Sec. 334. Whoever, without lawful au- ,,4iosories te rebbery
thority, receives or takes into custody any
vessel, goods, or other property, feloniously ®&*
taken by any robber or pirate against the  Hempst., 413, 1 Fed.
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.

Sec. 335. All offenses which may be ,,jclonies and misde
punished by death, or imprisonment for a
term exceeding one year, shall be deemed felonies. All
other offenses shall be deemed misdemeanors.

Mirder and man-

SEc. 336. In all cases of murder or MaN- goughter; place where
slaughter, the crime shall be deemed to have im, deemed,‘ have
been committed at ‘the place where the “R §, 6.5330, 5341.
injury was inflicted, or the poison admin- ~3,,.0.s,100.s.,
istered, or other means employed which #% U.S petegiy?
caused the death, without regard to the Berge: 79 Ged Rep,
place where the death occurs. Nee er One

Sec. 337. Words used in this title in  Comtuction of words.
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
“person” 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 herein, shall
be construed to mean this act.

SEG. 338. The omission of the words “hard «Omission _.of words

~labor” from the provisions prescribing the ‘rive cout of Power
-

732 CRIMES.—Cu. 14-15.

punishment in the various sections of this act, shall not be
construed as depriving the court of the power to impose hard.
labor as a part of the punishment, in any case where such
power now exists.

Arrangement and

classification of sections, SEC. 339. The arrangement and classi-

fication of the several sections 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 legislative construction is to be drawn
by reason of the chapters under which any particular sec-
tion is placed.

any iSdiction of circuit Sec. 340. The crimes and offenses defined

in this title shall be cognizable in the circuit
and district courts of the United States, as prescribed in
sections five hundred and sixty-three and six hundred and
twenty-nine of the Revised Statutes. -

CHAPTER FIFTEEN.

REPEALING PROVISIONS.

Sec. Sec.

341. Sections, acts, and parts of 343. Prosecutions and punishments.
aets repealed. BAe

342. Accrued rights, etc., not af- 344. Acts of limitation.
fected. 345. Date this act shall be effective.

pareiene ote amd = Sec. 341. 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 seven-
teen 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 hun-
dred 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-
CRIMES.—Cu. 15. 733

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; sec-
tions 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 hun-
dred 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 hundred and eighty-nine; sections fifty-two hun-
dred and eighty-one to fifty-two hundred and ninety-one,
both inclusive; sections fifty-three hundred and twenty-
three to fifty-three hundred and ninety-five, both inclusive;
sections fifty-three hundred and ninety-eight to fifty-four
hundred and ten, both inclusive; sections fifty-four hundred
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; sections 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
734 CRIMES.—Cu. 15.

- prescribed shall, for every such offense, be punishable by a
fine of not more than one hundred dollars, or by imprison-
ment 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 con-
nected 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 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
indictment 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 contained shall be
construed to prohibit any postmaster depositing, 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 postmaster, 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 disbursing officers, or otherwise, when instruct-
ed or required to do so by the Postmaster-General, for the
purpose of remitting surplus money-order funds from one post-
office to another, to be used in payment of money orders.”

“An Act to protect lines of telegraph constructed or used by
the United States from malicious injury and obstruction,” ap-
proved June twenty-third, eighteen hundred 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
CRIMES.—Cu. 15. 735

and seventy-four, which reads as follows: “That any
postmaster who shall affix his signature to the approval of
any bond of a bidder or to the certificate of sufficiency of
sureties in any contract before the said bond or contract is
signed by the bidder or contractor and his sureties, or shall
knowingly, Or without the exercise of due diligence approve
any bond of a bidder with insufficient sureties, or shall know-
ingly make any false or fraudulent certificate, shall be
forthwith dismissed 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 orna-
mental and other trees on Government reservations and on
lands purchased by the United States, and for other pur-
poses,” approved March third, eighteen hundred and
seventy-five;

_“An Act to punish certain larcenies and the receivers of
stolen goods,” approved March third, eighteen hundred and
seventy-five;

“An Act to amend section fifty-four hundred and fifty-
seven of the Revised Statutes of the United States, relating
to counterfeiting,’ approved January sixteenth, eighteen
hundred 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 follows:
“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 misdemeanor and sub-
ject 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 appropriations
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 seventeenth, 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
736 CRIMES.—Cu, 15. 7
guilty of a misdemeanor, and, on conviction thereof, shall be
fined in a sum not less than fifty nor more than five hundred
dgllars, 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, 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
indicated on their faces, or sell or dispose of stamped en-
velopes 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 embezzlement by
officers of the United States,” approved February third,

- eighteen hundred and seventy-nine;

That part of section one of ““An Act making appropriations
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 post-
office 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;
CRIMES.—Cu. 15. 737

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 hun-
dred and eighty-two;

Sections eleven, twelve, thirteen, fourteen, and fifteen of
“An Act to regulate and improve the civil service of the
United States,’ approved January sixteenth, 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 depart-
ment 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 securities of
foreign governments,” approved May sixteenth, eighteen
hundred and eighty-four;

Section nine of ‘“‘An Act making appropriations for the
current and contingent expenses of the Indian Department
and for fulfilling treaty stipulations with various Indian
tribes for the year ending June thirtieth, eighteen hundred
and eighty-six, and for other purposes,” 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 pur-
poses,’ approved March third, eighteen hundred and eighty-
three,” approved January third, eighteen hundred 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 hundred 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 appropriations
for the service of the Post-Office Department for the fiscal

47
738 CRIMES.—Cu. 15.

year ending June thirtieth, eighteen hundred and eighty, and
for other purposes,’’’ approved January twentieth, eighteen
hundred and eighty-eight;

“An Act to amend section fifty-three hundred ‘and eighty-
eight of the Revised 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 eighteenth,
eighteen hundred and eighty-eight;

“An Act amendatory of ‘An Act relating to postal crimes
and amendatory of the statutes therein mentioned,’ approved
June eighteenth, eighteen hundred and eighty-eight, and for
“other purposes,” approved September twenty-sixth, eighteen
hundred and eighty-eight;

“An Act to punish, as a felony, the carnal and unlawful
knowing of any female under the age of sixteen years,” ap-
proved 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 fraudulent
devices for using the United States mails,’’ approved 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 pur-
poses,” approved September nineteenth, eighteen hundred
and ninety;

“‘An Act further to prevent counterfeiting or manufacture
of dies, tools, or other implements used in counterfeiting,
and providing penalties therefor, and providing for the issue
of search warrants in certain cases,’ approved 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;

&. “An Act to prohibit prize fighting and pugilism and fights
between men and animals, and to provide penalties therefor
CRIMES.—Cu. 15. 739

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 De-
partment of Agriculture for the fiscal year ending June
thirtieth, eighteen hundred and ninety-five,” approved
August eighth, eighteen hundred and ninety-four, and that
part of “An Act making appropriations for the Depart-
ment of Agriculture for the fiscal year ending June thirtieth,
eighteen hundred and ninety-six,’’ approved 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,”’ approved April twenty-fifth, eighteen
hundred and ninety-six, which reads as follows: “‘Any person
who shall knowingly issue or publish any weather forecasts
or warnings of weather conditions falsely representing such
forecasts 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 current
ard contingent expenses of the Indian Department and ful-
filling treaty stipulations with various Indian tribes for the
fiscal year ending June thirtieth, eighteen hundred and
ninety-seven, and for other purposes,” approved June tenth,
eighteen hundred and ninety-six, which reads as follows:
“Provided further, That hereafter it shall be unlawful for
any person to destroy, deface, change, or remove to another
-place and 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 Govern-
ment survey, or to deface, change, or remove any monu-
ment or bench mark of any Government survey. That
any 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 imprisoned not
more than one hundred days. All the fines accruing under
740 CRIMES.—Cu. 15.

this paragraph shall be paid into the Treasury, and the in-
former 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 eighth, 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, eighteen 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,” ap-
proved March third, eighteen hundred and ninety-seven;

Section eighteen of “An Act to amend the laws relating
to navigation,” approved March third, eighteen hundred 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: ‘“‘Provided, 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 compensation of the rail-
road 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 im-
prisoned 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 United

\
CRIMES.—Cu. 15. 741

States,” approved July twenty-fourth, eighteen hundred and
ninety-seven ;

Section three of an Act entitled ‘““An Act making appropri-
ations 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 fortifications
constructed or used by the United States from malicious
injury, and for other purposes,” approved July seventh, eigh-
teen 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,” approved May
fifth, nineteen hundred;

Sections two, three, and four of ‘“‘An Act to enlarge the
powers of the Department of Agriculture, prohibit the trans-
portation by interstate commerce of game killed in violation
of local laws, and for other purposes,” approved May twenty-
fifth, nineteen hundred;

“An Act to prevent the sale of firearms, opium, and in-
toxicating liquors in certain islands of the Pacific,” approved
February fourteen, nineteen hundred and two;

“‘An Act for the suppression of train robbery in the Terri-
tories 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 dis-
trict courts for the district of South Dakota in certain cases,
and for other purposes,” approved February second, nine-
teen hundred and three;

“An Act to amend section three of the ‘Act further to pre-
vent counterfeiting or manufacturing of dies, tools, or other
implements used in manufacturing,’ and so forth, approved
February tenth, eighteen hundred and ninety-one,” ap-
proved March third, nineteen hundred and three;

“‘An Act for the protection of the Bull Run Forest Reserve
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, eighteen
hundred and ninety-seven, entitled ‘An Act to prevent the
carrying of obscene literature and articles designed for in-
742 CRIMES.—Cu. 15.

decent and immoral use from one State or Territory into
another State or Territory,’ so as to prevent the importation
and exportation of the same;’’ approved February eighth,
nineteen hundred and five;

“An Act to amend section thirteen of chapter three hun-
dred and ninety-four of the Supplement to the Revised
Statutes of the United States,” approved March second,
nineteen hundred and five;

Section five of ““An Act to amend sections forty-four hun-
dred and seventeen, forty-four hundred and fifty-three,
forty-four hundred and eighty-eight, and forty-four hundred
and ninety-nine of the Revised Statutes relating to miscon-
duct 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, nineteen
hundred and six. fat

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 in 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 shanghaiing in
the United States,’ approved June twenty-eighth, nineteen
hundred and six,” approved March second, nineteen hundred
and seven. ;

An Act entitled “‘“An Act to promote the safe transporta-
tion in interstate commerce of explosives and other danger-
ous articles, and to provide penalties for its violation,” ap-
proved May thirtieth, nineteen hundred and eight.

An Act entitled “‘An Act to amend section fifty-four hun-
dred and thirty-eight of the Revised Statutes,” approved
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
CRIMES.—Cu. 15. 743

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.

Sec. 342. The repeal of existing laws or , ¢@ued Ten ete
modifications thereof embraced in this title
shall not affect any act done, or any right accruing or ac-
crued, or any suit or proceeding had or commenced in any
civil cause prior to said repeal or modifications, but all lia-
bilities under said laws shall continue and may be enforced
in the same manner as if said repeal or modifications had not
been made.

Sec. 343. All offenses committed, and all ;,2tsecutions and pun-
penalties, forfeitures, or liabilities incurred
prior to the taking effect hereof, under any law embraced in,
or changed, modified, or repealed by this title, may be prose-
cuted and punished in the same manner and with the same
effect as if this Act had not been passed.

Sec. 344. All acts of limitation, whether 4% 0f/imitetion
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 com-
menced and prosecuted within the same time and with the
same effect as if said repeal had not been made.

Sec. 345. This Act shall take effect and .q03t,ths act shall be
be in force on and after the first day of Janu-
ary, nineteen hundred and ten.

Approved, March 4, 1909.
INDEX TO FOREGOING PENAL CODE.

Abortion: :
Aiding in trading, etc., in
articles to produce......
Articles to produce, non-
mailable...............
Shipment of articles to pro-
duce, in foreign and in-
terstate commerce......
Traffic in articles to pro-
duce, in Territories.... .
Accessories:
Punishment of....... Teta 3
Adultery:
Punishment for..........
Affidavits:
“Altering, counterfeiting,
Taking or carrying away,
etc., unlawfully........
Unlawful use of, to secure
payment of claims, etc.
Aliens:
Counterfeiting oath, etc.,
pene to naturalization
OV 36-85 shia ae eines oo es Bs
Depriving, of civil rights.
Animal Industry Bureau:
Forcibly resisting officers of
Armories:
Enticing workmen from.
Hiring-or concealing em-
ployees of.............
Arms:
Purchasing or receiving, in
pledge from soldiers...
Stealing, etc., of United
States........... petals. 6
Army posts:
See Military reservations.
Arsenals:
Enticing workmen from. .
Hiring or concealing em-
ployees of.............
Unlawful presence upon..
Arson:
Of arsenal, etc............
Of dwelling house........
Assault:
With intent to commit
murder, rape, etc......
Bail:

Procuring false...........

Sec.
102
211

245
312
333
316

28
40
40

76
20

62
43
43

35
36

286
43

43
45

286
285

276

127 |

 

Bank notes:
See Securities.

Bankers:
Converting, using, etc.,
public moneys.........
Bids:
Altering, counterfeiting,
CGscagca cd keaeadecws

Having in possession alter-
ed, etc., with intent to
defraud...........-.4.

Uttering or publishing al-
tered, ete. cisicaccacwee

Birds:
Hunting, etc., on preserves

Importation of certain,
prohibited.............

Blood:
No conviction to work cor-
ruption of.............

Bonds:
Altering, counterfeiting,
CLG pudwea cade oe Base eRe

Having in possession al-
tered, etc., with intent
to defraud.............

Imitating, printing adver-
tisements on, etc.......

Uttering or publishing al-
tered, etc............-.

Bribery:

Acceptance of, by juror,
judicial officer, etc......

Attempting, of Members of
Congress...........-..

Of government officials. .

Of judge or judicial officer

Of Members of Congress.

Officers of United States
accepting..............

Of revenue officers........

Of witnesses.............

Bull fights:

Prohibited...............

Bull Run National Forest:
Trespassing upon.........
Bureau of Animal Industry:

See Animal Industry Bur-

eau.

Certificates:

Altering, counterfeiting,

Falsifying by officials. ...

Sec.

96
28

28
28
84
241

324
28

28
177
28

133
111

39
131
110
117
134
320

55
746

Certificates—Continued.
Having in possession al-
tered, etc., with intent
to defraud..
Imitating, printing adver-
tisements on, etc......
Officials making false, to
obtain payment of claim
Postmaster making false.
Taking or carrying away,
etc., unlawfully........
Unlawful use of, to secure
payment of claims, etc.
Uttering or publishing al-
tered, €€ Crises 5. hax oy 9
Certificates of entry:
Altering, counterfeiting,
etc., by officers........
Citizens:
Falsely claiming to be, of
United States..........
Intimidation of, in exercise
of rights, etc., secured
by Constitution........
Citizenship:
Counterfeiting certificate
Counterfeiting, etc., signa-
ture, etc., to obtain cer-
tificate of.............
Denying, after naturaliza-
WON. wate edd wee ties See
Engraving plate, etc., for
printing certificate of. .
False impersonation to ob-
tain certificate of.......
Falsely claiming..........
Printing or photographing
certificate of...........
Selling, etc., certificate of
Unlawful possession, etc.,
es counterfeit certificates
Unlawful possession of
counterfeit plates, etc.,
of certificates of......
Unlawful use f certificates

Claims:

Aiding in payment of false

Court officials purchasing,
for fees, etc...........

False _ presentation
against United States.

Members of Congress be-
ing interested in, against
United States..........

Officers not to be intcrest-
ed in, against United
PALES Soccer e jan aA

Presenting false, etc., as to
mail matter...........

 

INDEX.
Sec. |{ Clerks of courts:
: Failure of, to deposit
moneys...... cry ee
30 Purchasing claims for wit-
ness fees, etc..........
177 Receiving money, as a loan
etc., from.............
35 | Cohabitation:
222 Unlawful..............5.
Coins:
40 Counterfeited, to be for-
LELCED co asctecs 24 eee esa auts
40 Counterfeiting, gold and
SUV OP crass ites adn. sila she asa
29 Counterfeiting, importing,
etc., designs of........
Counterfeiting, etc., dies
63 for foreign.............
Counterfeiting, etc., dies
for, of United States...
79 Debasement of, by officers
Of MINtescsseaeeuaves
Embezzlimg, by officers of
19 MINE casctacauivn oe ments sutve
Making, etc., devices of
MINOT 25 crete. aoe e wan sthecs
74 Making, etc., in resem-
blance of money.......
Marshals, etc., authorized
76 to search for counter-
feited 0.0 ee cee
77 Minor; counterfeiting, etc.
Mutilating, scaling, ete...
75 Passing, etc., counterfeited
Passing, etc., or bringing
76 into United States muti-
79 lated, ete,..........-.+.
75 | Commerce:
76 Foreign and interstate—
Depositing obscene
books, etc., for ship-
77 ment in...........
Importation of certain
animals and birds
75 prohibited.........
Interstate Commerce
78 Commission to regu-
late transportation
35 of explosives in...
Marking of packages
104 containing birds and
animals to be ship-
35 ped in...:...%65 85
Marking of packages
containing  explo-
113 eve to be shipped
Shipment of lottery
109 tickets, etc., in.
Unlawful shipment of
224 dynamite, etc., in

Sec.

99
104
100

314

172
163
171
170
169
166
166
168
167
173
164

165
163

165

245

241

233

243

235

237
232
Commerce—Continued.
Unlawful shipment of
liquid nitroglycerin,
etc., in
Interstate—
Packages containing
intoxicating liquors
for shipment in, to
be marked as such.
Shipment of certain
birds and animals
in, prohibited; ex-
ception...........
Shipment of intoxicat-
ing liquors in; com-
mon carrier not to
collect purchase
price: Ofes. <4 sence
Shipment of intoxicat-
ing liquors in; de-
livery to be to bona
fide consignee......
Conspiracy:
To cast away vessel.....
To commit any offense
against United States;
all parties liable.......
To induce an officer of
United States to leave
any State, Territory, etc.
To intimidate, etc., citizen
in free exercise of right,
etc., secured by Consti-
tUtOD: ois dees ee oes
To intimidate witnesses,
jurors, etc.............
To prevent any person
from accepting or hold-
ing office..............
Seditious................
Consuls: 7
Falsely certifying invoices
Contracts:
Altering,

counterfeiting,

Employees of postal service
not to become interested
in, for carrying mails,

Having in possession al-
tered, etc., with intent
to defraud.............

Members of Congress in-
terestedin.............

Officers making, to pay
larger sum than appro-
priated................

Officials making, with
Members of Congress. .

Procuring, by Members of
Congress..............

INDEX.

Sec.

234

240

242

239

238

296

37

21

19

136

21
6

70

‘

28

226

28
114

98
115

 

Contracts—Continued.
Uttering or publishing al-
tered, etc..............
Conveyances:
Falsely certifying record-
ANS: OF ae vets gaan sek & tale oie tess
Corporations:
Circulating bills of expired
Contributions by, to elec-
LIONS rienarase cd aisugeen wistioos
Officers of, not to act as
government agents to
make public contracts.

Counterfeit money:
Using mails to distribute

Counterfeiting:

Bank notes of foreign gov-

ernments..............
Bonds, notés, etc., of for-

eign governments......
Certificates of citizenship.
Certificates of entry by

Offictalsicc «24 see 05 een a x
Designs of coins..........
Dies for coins of United

Dies, etc., for foreign coins
Gold and silver coins...
Issue of search warrants to

Letters patent...........
Military oe ‘war-

TANTS. CFC irciaicns aides ehaciies
Minor coins.............
Money orders............
National-bank notes......
Postage stamps, foreign. .

Postage stamps, postal
CALs, CC. ck coun oe heres
Registry or enrollment of
Vessel acces sexes xi sass

Securities of United States
Signature of postmaster. .
Uttering, etc., military
bounty-land warrant,etc.
Courts:

Crimes defined in title cog-
nizable by circuit and
GIStEICES £45. ce eteueuabivs detes

Officers of, failing to de-
posit moneys, etc.......

Officers of, purchasing
claims for witness fees,

Receiving loan etc., from
officers of.............

Crop reports:
Officials giving advance
information respecting. .
Officials issuing false statis-
tics respecting.........

747

Sec.

28

105
174
83

Al

215

158

156
74

63
171

169
170
163

173
27

73
164

149
220

219
72
218
73

340
99

104
100

123
748

Customs:
Assaulting, etc., officer of..
Death:

Infliction of penalty of, by

hanging...............
Deeds:

Altering; counterfeiting,

Having in possession al-
tered, etc., with intent
to defraud.............

Uttering or publishing al-
tered, etc:.............

Desertion:

Enticing, from army and

PAV cos: seesaw Secen st ctaertoue
District courts:

Jurisdiction in offenses

against neutrality......
Dynamite:

Shipping, unlawfully, in
foreign and _ interstate
commerce.............

Elections:

Contributions to, by cor-
porations and national
DAMES oon scenes Shauduand, eeuare

Intimidation of voters by
officers, etc., of army
and’ navy at..........

Officers, etc., of army and
navy, intimidating offi-
COPS. OF weiss dca dantoncecs acmuare

Officers of army or navy,
prescribing qualifications
of votersat........ aaah

Unlawful _— presence of

TPOOPS Ab: 45s canee cee
Embezzlement:

Of coins by officers of mint

Of mail matter...........

By officers, clerks, etc., of
United States..........
Of postal funds, property,

Of public moneys, by dis-
bursing officers.........
Of public moneys, by in-
ternal-revenue officers. .

Of public property........
Explosives:

Death or injury from. in

transporation; person

Nablesis scaina weaeraees

Interstate Commerce Com-
mission to regulate
transportation of.......

Marking packages contain-

Sending, in mails, prohib-
BECO orexsid vn anand cai

INDEX.

Sec.
65

323

29

30
29

42

14

232

83

23

25

22

166
194

86
225
87

97
47

236

233
235

 

Explosives—Continued.
Shipping, unlawfully, in
foreign and interstate
commerce............
Extortion:
By officers of United States
By threats of informing, etc
Felony:
Definition of.............

Female:

Having carnal knowledge
Ol, wader 16s 004 ecee5«

Payment of fine to, when
seduced...............

Seduction of, passenger on
VOSSEL 5s es'e artecgari nae m

Fines:

For timber depredations,
to be paid into public
school fund............

Foreign governments:

Accepting commission to

serve, against friendly
POWEF. 0... eee ee eee
Augmenting force of war
vessels of..............
Counterfeiting, etc., bank
Motes Of. ssa carciosere sane
Counterfeiting, etc., de-
signs of coins of........
Counterfeiting, etc., dies

for coins of...........
Counterfeiting, etc., post-
age stamps of.........
Counterfeiting, etc., secur-
ities Of sis cce-ces weeees
Enlisting in service of....
Fitting out and arming ves-
sels toserve.........---
Having in possession, etc.,
counterfeited, etc., bank

Having unlawful posses-
sion of plates for print-
ing securities of.......

Organizing military expedi-
tions against...........

Passing, etc., counterfeit-
ed, etc., bank notes of..

Piracy by subjects of....

Unauthorized _correspon-

dence with...........-

Forgery:

Of bids, etc............-65
Of certificates, etc....... .
By connecting parts of dif-

ferent instruments......
Of deeds, etc........- ee

Of judicial papers, etc....

Sec.

232
234

85
145

335
146

279
281
280

12
158
171
170
220

156
10

11

160
Forgery—Continued.
Of letter patent..........
Of securities of United

Fornication:

Punishment for..........
Fortifications:

Destroying property of..
Forts:

Unlawful presence upon. .
Gift enterprises:

See Lotteries.
Goods:

Receiving stolen, etc.....
“Green goods:”

See Counterfeit money.
Gunpowder:

See Dynamite.
‘Hard labor:”

Omission of words from

Hostility against the Govern-
ment:
Enlisting in United States
toservein.............
Recruiting soldiers, etc.,

Incest:
Definition of; punishment
Indian reservations:
Crimes on, in South Da-
ROUB os es ek Gy scdncpet ics Bows
Cutting, etc., timber on..
Indians committing crimes

Indians:
Punishment of, for crimes
~in Territories........ ee
Insurrection:
Inciting against United
Stalesirasesnncecwes “gas
Internal revenue: .
Assaulting, etc., officer of
Interstate Commerce Commis-
sion: .
To regulate transportation
of explosives...........
Intoxicating liquors:
See Liquors. —
Invoices:
Concealing or destroying,
of merchandise........
Consuls falsely certifying.
* Judges:
Accepting bribe..........
Bribery of...............
Jurors:
Accepting bribe..........
Attempting to influence by
writing..............0.

INDEX.

Sec.
ot

148
318
44
45

288

338

317

329
50

328

328 ©

4

65

233

64
70

132
131

133
137

 

Jurors—Continued.
Conspiracy to intimidate,

_Intimidating, corrupting,
PAs abe icin dow eer a

Kidnaping:

' Bringing kidnaped persons
into United States......
Definition of.............

Larceny:
Punishment for.........

Letters patent:

Uttering, etc., forged or
counterfeited..........

Limitation:

Liquors:

Interstate shipment of in-
toxicating; common car-
rier not to collect pur-
chase price of..........

Interstate shipment of in-
toxicating; delivery to
be to bona fide consignee

Interstate shipment of in-

toxicating; packages
containing, to be mark-
edassuch.............
Sending, in mails, prohib-
MCs asisieca tite enc te acters
Lotteries:

Importing, etc., tickets of
Matter relating to, non-
mailable..............
Postmasters not to be
agents for.............
Lottery tickets:
See Lotteries.
Mail bags:
Tnjariis, ete... 1.cxncees
Mail matter:
See Mails.
Mails (see also Post-offices) :
Assaulting carrier of, with
intent torob...........
Carried by foreign vessel,
to be delivered to post-

Carrying letters out of, on
POSE TOULES .u. cx eey wees
Carrying letters out of, on
WESSEIS). csc 3 ra Wee Re
Carrying letters, etc., with-
out compensation......
Conveyance of, by private
OXPTESSi.c-4 3.2 gece escent
Delaying, by ferryman...
Delivery of, by master of
WESSEL ocicaieie ane simcn eusied
Deserting...............
Detaining, embezzling,etc.,
by postmaster..........

749

Sec.
136
135
271
268
287

27
344

239

238

240
217
237
213
214

189

197

203
184
185
186

181
202

200
199
750

Mails—Continued.
Foreign vessels to deliver,
before entry is allowed.
Fraudulent use of enve-
lopes, to avoid payment
Of POSlABe: 5.046 es eaae
Fraudulently
weight of..............
Having in
stolen, Ch@....4..00005 4
Illegal carrying, by car-
riers, etc........ rete
In closing higher class, in
lower class, etc..........
Injuring bags for carrying
Injuring, destroying, etc.
Injuring letter box, lock

DOX> Cle... 855.4008
Libelous, indecent, etc.,
envelopes, cards, etc.,
excluded from..........
Liquors, etc., excluded
frOMy<.c455ecens sax ey
Lottery ticket, gift enter-
prise, etc., excluded
ATOM cvanorkencsadee dedeeanwtes

Obscene, etc., matter, ex-
cluded from...........
Obstructing, etc..........
Offenses against foreign,
ANS EPAMSIE, 2 io jeccocio done: Shinra om
Poisons and explosives ex-
cluded from; exception
Presenting false claims, etc.
in relation to..........
Robbery 0f:5.¢%¢502082 24
Securing admission of pub-
lications to, at second-
class rate, by fraud....
Sending, by private express
Stealing, embezzling, etc..
Transporting persons un-
lawfully conveying.....
Use of, to promote fraud. .
Using for fraudulent
schemes, etc...........
Vehicles, etc., claiming to
be carriers of..........
Wearing uniform of carrier
Oe cay ats ican dort espe Sane
Maiming:
Punishment for..........
Manslaughter:

Assault with intent to com-

Attempt to commit......
Definition of.............

Place where crime deemed
to have been committed

Punishment for..........

INDEX.
Sec. | Marriage: Sec.
Failing to record certifi-
204 GALES OL  ceccacai 8 cctenane ane 319
Marshals:
Allowing prisoner to es- :
227 CADCH anasvacanoar amens 138
Rescuing body of executed
228 offender from.......... 144
Members of Congress:
194 Being interested in con-
CPACUS pecs a meesnea Be 114
180 Offering bribe, etc., to... 111
Officials making contracts
221), WED sce. secace cunadnacave tain 115
189 Procuring contracts, offices
198 | Cb Cracscesiseae toe sofas Maveelavick 112
Receiving compensation
198 for official services..... 110
Receiving compensation
: for services in claims,,
212 EL Ciscoe tacartiltane inte teach 113
Soliciting or accepting
217 Bribe incre caps eraundions 110
Soliciting or receiving
political contributions.. 118
213 | Merchandise:
Admitting, to entry for
211 less than legal duty.... 68
201 Securing entry of, by false
samples........... mage OD
229 | Military reservations:
Unlawful presence upon... 54
217 Mi ‘
isdemeanor:
294 Definition of............. 335
197 | Misprision of felony:
See Felony.
Misprision of treason:
223 See Treason.
183 | Money Orders:
194 Counterfeiting........... 218
Issuing, without payment,
182 by postmasters......... 210
215 Presenting forged, etc.,
for payment........... 218
aa Murder:
188 Assault with intent to com-
Mi bsivnes sec aes eee 276
187 Attempt to commit...... 277
Body of executed offender
may be delivered to sur-
283 geon for dissection.... 331
Definition of............. 273
Place where crime deemed
276 to have been committed 336
277 Punishment for.......... 275
Verdict for crime of, may
274 be qualified............ 330
Mutiny:
336 Inciting, by crew of vessel,
275 Bb Ch ccsiscyis atcascelavnaia aniesipos eB 292

 
National banks:
Contributions by, to elec-
HOTS: oie soy nterrand eae nes
National-bank notes:
Connecting different parts
Oli cia cid bog awene renee
Counterfeiting, altering,
etc..... ee Si aythend que iset
Imitating, printing adver-
tisements on, etc.......
Mutilating or defacing...
National currency:
* See National-bank notes.
Naturalization:
Counterfeiting, etc., signa-
ture, etc., relating to...
Denying citizenship after.
False swearing in proceed-
ings relating to........
Jurisdiction in proceedings
IOP cistiank Ponca wom nee
Using false certificates of.
Newspapers:
Detention, etc., of, by post-
pe ae er errr
Nitroglycerin:
Shipping, unlawfully, in
‘foreign and _ interstate
commerce.............
Notes:

Issue of, for less sum than
$1, prohibited..........
Oaths:
Counterfeiting, relating to
naturalization of aliens
Officer making false ac-
‘knowledgment with re-
spect to contracts, etc..
“Obligation or other security of
the United States” (see also
_ Securities) :
Definition of phrase......
Obscene literature:
See under Publications and
_Mails.
Office:
Disqualification for hold-
ing, of honor, etc......
Officers:
Accepting bribe..........
Aiding in trading, etc., in
obscene publications, etc.
Conversion of public mon-
OVS DY css Ses th wea doe dees
Disbursing—
Converting, etc., pub-
lic money to own

Embezzlement by........
Extortion by............

INDEX.

Sec.

83

162
149

175
176

76
77

80
81
79

196

234

178

76

31

147

26
117
102

95

 

Officers—Continued.
Failing to make returns or
TEPOTUSisicisis sree ww ote ele
Falsely pretending to be,
of United States......
Giving out advance infor-
mation respecting crop
PEPOTES eosicviosare ta x aunees
Issuing false statistics re-
specting crop reports. .
Making contracts in excess
of appropriations.......
Making fales certificates,

Obstructing, etc., in serv-
ing process............
Prosecuting claims against
United States..........
Receipting for larger sums
than are paid.........
Receiving political contri-
butions: <5 sasavnedenes
Pacific islands:
Selling arms, etc., to nat-
EVESIOL: Sons deca hunin as wen be
Pension agents:
Receiving illegal fees......
Peonage (see also Slaves):
Holding, etc., persons in. .
Perjury: '
Definition of.............
Subornation of...........
Piracy:
Accessories to............
Seizure of persons to make
slaves of, is act of.....
By subjects of foreign state
Under color of foreign com-
MHOBIOD. saxo ba ney oo eee
Under the law of nations.
Pitch:
See Turpentine.
Poisons:
Sending, improperly, in the
THAUS): 0 x iayedidt acumen dines
Political contributions:
By. corporations or nation-
al banks: we sea amen ewes
Immunity, from, by offi-
cers, employees, etc....
Members of Congress, offi-
cials, etc., soliciting or
PECCIVING. (ope wen ca een 4
Officials, etc., not to give
to Members of Congress,
other officials, etc......
In public buildings, pro-
hibited): «2.4.62 60 04% a0
-Polygamy:
Definition of; punishment
Post-offices (see also Mails):
Breaking into and entering

751

Sec.
101
32

123
124

98
106
140
109

86
118

308
108
269

125
126

334

247
305

304
290

217

83
120°

118

121
119
213
192
752

Post-offices—Continued. :
Conducting fraudu-
lent schemes, by use of.
Conducting, without auth-
OUIEY is sishise secession cuayagipaccgoue
Stealing, etc., mail locks,
etc., of
Stealing, etc., property of
Postage stamps: .
Counterfeiting, etc........
Failure to cancel, by post-
TASTED ise eticoniseacverees
Foreign — counterfeiting,

Unlawful selling, ete., by
postmaster............
Using, selling, etc., can-
Gbléd, tic icc icccaneccs
Postal cars:
Unlawfully entéring......

Postal service (see also Mails):.

Definition of phrase.....
Employees of, not to be in-
terested in contracts for
carrying mails, etc.....
Employees of, to take oath
Wearing uniform of letter

Postmasters:
Collecting unlawful post-
BO ceseinss Ao: ctsretet Soasnswasasn Bio
Detaining, embezzling, etc.
mail matter...........
Detaining, embezzling,
etc., mewspapers......
Failing to account for post-

Forging signature of.....
Illegally approving bond,

Issuing money order with-
out payment...........
Making false returns, etc.
Not to act as lottery agents
Unlawful selling, pledging,
etc., of postage stamps,

Powers of attorney:
Altering, counterfeiting.

Unlawfully taking or carry-
ing away,
’ President:

Power of, to pardon......
Principals:

Definition of.............
Prisoners:

Allowing, to escape.......

Rescuing, es

Rescuing, at executions...

INDEX.

 

Sec. | Prize fights:
Prohibited...............
216 | Prize property:
Fraudulently disposing of,
179 Ceci disegevie ort Banu dy swe nanwonece
Proposals:
191 Altering, counterfeiting,
190 ClO sain ae wameess
Having in possession al-
219 tered, etc., with intent
to defraud.............
209 Uttering or publishing al-
tered, etc..............
220 | Public domains:
See Public lands.
208 | Public lands:
Chipping, etc., timber on,
205 to obtain pitch, etc.:..
Cutting, etc., timber on..
193 Defacing, destroying, etc.,
survey marks on.......
231 Destroying property on..
Failing to extinguish fires
started on.............
226 Grazing stock on, etc.....
230 Hunting birds, etc., on pre-
BOFVES nod wanrn qe dane
187 Interfering with sales of..
Preventing surveys of...
Setting fire to timber on. .
207 | Public moneys:
Banker, etc., unlawfully
195 receiving, using, etc....
Conversion, etc., of by cus-
196 COMIATS 865. cosucesiisigs coarseceus
Conversion, etc., of, by dis-
209 bursing officers.........
218 Conversion of; what con-
stitutes.........- Pt te
222 Embezzlement of, by in-
ternal revenue officers.
210 Failure of officers, etc., to
206 render accounts of....
214 Failure to make deposit of
Failure ot safely keep by
Treasurer, etc.........
208 Proceedings to prove em-
bezzlement of..........
Refusing to pay draft, etc.,
29 of accounting officer for
40 Public property:
Embezzlement of.........
Officers trading in.......
327 Receiving, etce., embezzled
Public records:
332 Altering, counterfeiting,
CUS a aicandecntiedney oediten hesnins es ARCS
138 Destroying, concealing,
141 OVC ores shannon sg Wasiningy tar snctirceranie
143 Destroying, concealing,
142 etc., by custodian......

28

28
28

51
49

57
56

53
56

59
58
52

96
89
87
95
97

90
91

93
94
47
103
48
28

128
Public records~Continued.
Having in possession al-
tered, etc., with intent
to defraud..
Uttering or publishing ‘al-
tered, etc..............
Publications:
Aiding in trading, etc., in
obscene, etc...........-
Circulation of obscene, in
~ Territories.............
Libelous, indecent, etc.,
matter on envelopes,
wrappers, etc., nonmail-
‘able wary ssa ee Raw ns eS
Obscene, etc., nonmailable
Shipment of obscene, etc.,
in foreign and interstate
commerce.............
“Pugilistic encounters:”
Definition of phrase.....
Rape:
Assault with intent to com-

Body of executed offender
may be delivered to sur-
geon for dissection... .

By Indians, upon an In-
GAR aiden ier: a. oa ears

Punishment for..........

Verdict for crime of, may
be qualified............

Rebellion:

Inciting, against United

States inn-sucnewaaraa ants

Receipts:
Altering, counterfeiting,
Having in possession al-

tered, etc., with intent
to defraud.............
Uttering or publishing al-
tered, ete...7..........

Revenue Officers:

Admitting goods to entry
at less than legal duty. .
Bribery of...............
Falsely representing to be
Rescuing, etc., property

detained by...........

Rights:

Accrued—
Not affected by re-
DCS so cae

Robbery:

Accessories to.-,... seen.

By crew of niratival vessels
Of personal property of
United States..........

48

INDEX.

Sec.

28
28

102
312

212
211
245
321

276

331

328
278

330

29

29
29

68
67
66

71

342
334

276
302

 

Robbery—Continued.
Punishment for......... i
Of trains, etc., in Terro-

Seamen:

Harboring or concealing
deserted...............
Recruiting, to serve against
United States..........
Searches:
Assaulting, etc., person
authorized to make....
Authority to make, to find

counterfeit coins, etc...
Securities:
Circulating, of expired cor-
porations..............
Connecting different parts
"Ols.c4 Belinea See os ae Ee
Counterfeited, to be for-
Leite. .s-nais a hdap es be aoe
Counterfeiting, of foreign
governments...........

Dealing in counterfeited,
altered, etc............
Forging, altering, etc......
Having in_ possession
counterfeited, of foreign
governments...........
Having unlawful posses-
sion of plates for print-
ing, of foreign govern-

Having unlawful posses-
sion of tools for printing,

Imitating, printing, adver-
tisements on, etc......
Making, etc., any print,
etc., in similitude of...
Making, selling, using, etc.,
plates to print, without
authority evesennn<s sa xx
Passing, etc., counterfeited,
of foreign governments.
Passing, publishing, sell-
ing, etc., counterfeited.
Secreting, etc., tools and
materials for printing. .
Taking _ impressions of
tools, etc., used in print-
ing, stamping, etc...:.
Using mails to distribute

counterfeited..........
Seizures: |
Assaulting, etc., person

authorized to make....

Shanghaiing (see also Vessels):
What constitutes.........

65
173

174
162
172
156
154
148

160

161

153
177
150

150
157
151
155
754

Slave trade:
See Slaves.

Slaves:
Bringing, into United
Statess e.ciccsataeceaaaieas
Confining or detaining, on
: board vessel...........
Disposal of, found on board
VESSOIS ccd ace mecauendniiars

Receiving, on board ves-
SOI Sb oiiicsnaa-snauennm adres
Seizing, on foreign shore.
Seizure of vessels trading

ADE cs uniede aman tangs Stain fens
Serving on vessels trading
WD eidaiema mae awe Haus
-Transporting, etc.........
Vessels hovering on coast
with, on board.......

Soldiers:
Aiding or enticing to desert
Harboring or concealing
deserted...............
Recruiting to serve against
United States..........

South Dakota:
Crimes committed on In-
dian reservations in.....

States:
Laws of, adopted for pun-
ishing wrongful acts, etc.

Steamboats:
Inspector of, receiving il-
legal fees..............

Stocks:
Public—
Attempting to have
transferred, falsely.
Falsely  personating
holder of..........
Obtaining dividends
from, by false rep-
resentations.......
Telegraph:
Destroying or interfering
Wit bitsc de ceaiea deals oaeca
Telephone:
See Telegraph.
Territories:
Circulation of obscene
books, etc., in........
Conspiracy to induce ofli-
cer of United States to

Punishment of Indians for
CLiMeS IMs dais eee ae ee
Traffic in, in articles to
produce abortion, etc...

INDEX.

Sec.

248
246
262
249
254
253,
257
247
260
252
250

251
258

42
42

329

289

107

33
33

34

60

312

21
328
312

 

Timber:
Chipping, etc., on public
lands, to obtain pitch,

Cutting, etc., on public

land Sines sec ececainasce
Cutting, etc., on reserva-

HLORS So scica coud astomersinavacnve
Setting ‘fire to, on public

VAS jacsunra rt naeipace die encase

Treason:

Definition of............
Misprision of............
Punishment for..........

Turpentine:
Chipping, etc., trees on
public lands to obtain. .
Vessels: ;
Apprehension of officers of,
engaged in slave trade. .
Armed—
Engaging in hostilities
against friendly
DOWER ici gcace-e Sreneveunre
Instructions to, in re-
lation to slave trade
Arming, to cruise against
United States..........
Attacking, with intent to

plunder...............
Breaking and entering, ete.
Confining or detaining

slaves on board of.....
Conspiracy to cast away.
Currupting master of....
Counterfeiting registry or
enrollment of..........
Detaining persons to serve

Detention of, having war-
like*cargo «sn ac0x eda

Disposal of persons held as
slaves ON............65

Equipping, to trade inf
SIAVESE 1 ocinene Gasauanwentes

Foreign—
Augmenting force of.
To deliver mails to
post-office.........
Enlisting to serve on
Enlistment of tran-
sient aliens on arm-
ed, in time of peace,
not forbidden......
Entry not allowed un-
til delivery of mail
on board to post-
Office). ccs sai tea ces
Fitting out and arm-

«

Sec.

51
49
50
52

1
3
2
51

263

16
267
303

298
299

246
296
307
72
82
17
262

249
254

12

203
10

18

204
Vessels, foreign—Continued.

Proceedings against,

for offenses against
neutrality........

Forfeiture of, engaged in
slave trade...........
Hovering on coast with
slaves on board of....
Inciting mutiny on board

Inducing, by threats, etc.,
persons to serve on....
Laying violent hands on
commander of.........
Maltreatment of crew of,
by masters, etc.........
Master of, abandoning
crew on foreign shore. .
Master of, running away

Master of, seducing female
Masters, owners, etc., of,
liable for loss of life, etc.,
through negligence.....
Owner destroying at sea..
Owners of, suspected of be-
ing engaged in slave
trade, to give bond....

Passenger—
Not permitted to
carry explosives; ex-

- ception...........
Plundering, in distress, etc.
Receiving, etc., persons to

make slaves of........

INDEX.

sony
14
15
256
259
251
258
292
82
294
291
295
306
280

282
300

266

322
297
253
257

 

\

Vessels, Passenger—Continued.

Removal of persons held
as slaves on board of...
Robbery by crew of pirat-
Walls soy ox. stewes a sae oe eos
Seizure, of,
slave trade...........
Serving on, engaged in
slave trade............
Setting fire to, etc., at sea
Usurping command of, by

Uttering or publishing
counterfeited, etc., reg-
istry, ete, of.........

“Vessels of the United States:”’

Phrase defined...........

Vice-consuls:
See under Consuls.
Weather forecasts:

Issuing or publishing
counterfeit............
Whipping:

Punishment by, abolished
Witnesses:

Accepting bribe..........

Conspiracy to intimidate,

Intimidating, corrpution,

Writs:
Altering, stealing, etc....
Resisting service of......

799

Sec.
264
302
260
261

252
301

293

72

310
APPENDIX.

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.

LITLE LL.
THE CONGRESS.

Chapter Six.—The Library of Congress.
Stealing or injuring books of Library of
CODBTESS sii2.5.9ssciiueis crnceatia eosin tax ene Beas 19 June, 1878; 20 Stat., 171.

Chapter Seven.—Congressional investigations. |
~ Witness refusing to testify in congressional
INQUITYsceses ee eenek Kens ee gare Tw AR, S. 8 102.

Chapter Eight.—Contested elections.
Witness refusing to testify in contested-elec-

TLOM) CASO iis sssareGvsiageriiieeshanvioWon as Tomrsnay acetates R. S., s. 116.
Failure to deliver up papers in contested-
election cases sixe.0s genes eae ewe rene R. S., s. 123.

TITLEVI.
THE DEPARTMENT OF THE TREASURY.

Chapter One-—The Department.
4 Officers in Treasury Department engaging
Witrade, Glticcck cckckce ee Ganenseunes R. S., s. 243.
Clerks in Treasury Department trading in
debts or funds of any State or United
States...... J dels OSE MARES S AMOS BUD TS R. S., s. 244.

TITLE XII.

THE DEPARTMENT OF COMMERCE AND LABOR.

Chapter Six.—The Bureau of Statistics.
Person transporting commodities to for-
eign countries failing to deliver manifest
to collector of customs................. 3. Mar., 1893; 27 Stat., 689.

LITLE SLY,
THE CIVIL SERVICE.

Chapter One.—Appointments, qualifications, dut-
ies, and payments of clerks and
employees.
Officers and employees violating a Jan., 1883, s. 7; 22 Stat.,
concerning examination of applicants..\ 405
758 APPENDIX.

TITLE XV.
ESTIMATES AND APPROPRIATIONS.
Chapter Two.—Appropriations.
Expenditures not to exceed appropriations;

voluntary service, etc., or employment of [R. S. s. 3679.
unauthorized personal service prohibited|27 Feb., 1906; 34 Stat., 49.

TITLE XVI.

THE JUDICIARY.

Chapter Three.—District courts; Removal of

causes.
Clerk of state court refusing to give copy of {3 Mar., 1875, s. 7; 18 Stat.,
RCO,» vx aacas ¢ ws ve Ras erg RY Soe ok adh 72
Chapter Four.— District court; Miscellaneous pro-
visions. 4
Receiver failing to properly manage prop-{13 Aug., 1888, s. 2; 25 Stat.,
CPV esesrex sa eed seams oe BEETS OE RE EES 436.

Chapter Eleven.—District attorneys, marshals,
clerks, commissioners, and
stenographers.
Clerk of court refusing to make certificate 22 Feb., 1875, s. 6; 18 Stat.,
34.

Chapter Twelve. —Pay and allowances of court offi-
cers, jurors and witnesses.
Marshal, attorney, or other officer accept- ie May, 1896, s. 18; 29 Stat.,
183.

ing illegal fee/....... 00... 0. cee ee eee

I
Chapter Twenty.—Extradition.
Ki Opposing, etc., agent of United States ap-
pointed to receive from foreign govern-
ment person accused of crime within
jurisdiction of United States........... R. S., s. 5277.
Resisting agent of State or Territory ap-
pointed 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 subpoenaf2 Mar., 1901, s. 1; 31 Stat.,
of court-martial.............0 00.0 eee \ 950.

TITLE XX.
THE NAVY.

Chapter Ten.—Articles for the government of the
navy.
‘Witness refusing to appear or to testify be-) 16 Feb., 1909, s. 12; 35 Stat.,
fore court-martial or court of inquiry of; 622
IOS A WI ass: dssvarsrsantnattveuet soe aused ehanariacauennece
APPENDIX. , 759

TITLE AX.
DIPLOMATIC AND CONSULAR OFFICERS. 2

Chapter Two.—Consular officers.
Consular officer accepting appointment(30 June, 1902, s. 2; 32 Stat.,
from foreign country as administrator; 547.
and failing to give bond or account for

MONEYS: eos dine sexe nee we ee Gee ec oe
Consular officer exacting excessive fees..... BR. S., s. 1716.
Consular officer making false oath ‘in ac-
, counting for fees.............. 0c eee eee R. S., s. 1728.
Consular officer neglecting duty toward sea-

men; corrupt conduct of.............. R. S., s. 1736.
Consular officer making false certificate of

LOD EL Yaavacadien aed ess: bos a won alle Mawaroucs auechase R. S., s. 1737.

Chapter Three.—Provisions common to diplomatic
and consular officers.
Perjury before consular officer, or forging
seal or signature of such officer........ R. S., 8.1750.
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 before {31 Jan., 1903, s. 3; 32 Stat.,
register or receiver of land office...... 790.
Witness refusing to appear or testify before {31 Jan., 1903, s. 4; 32 Stat.,
officer taking deposition.............. 790.

Chapter Five-—Homesteads.
Making false affidavit before commanding
ie by person in military or naval serv-
asa ana eager ovale hee Sane Be A A Votes ida oa ACS R. S., s. 2293.
Mune false affidavit before United States /R. S., s. 2294.
commissioner.............00 cece eee 4 Mar., 1904; 33 Stat., 59.
Officer demanding excessive fees for entries/R. S., s. 2294.
and for final proof.................. 4 Mar., 1904; 33 Stat., 59.

Chapter Six.—Mineral Lands.
Citizens of certain States and Territories)3 June, 1878, s. 3; 20 Stat.,
cutting timber for other than specified; 89.
PUTPOSES sive: ices dons gs psesd cigs nes dae Derg a

Chapter Eight—Timber and stone lands.
Swearing falsely to application for timber{3 June, 1878, s. 2; 20 Stat.,
or stone land........... 0.002 eee renee 89. :
Unlawfully cutting timber on public land.3 June, 1878, s. 4; 20 Stat.,
90.

Chapter Thirteen.—National forests.
Rules concerning the use and occupancy of
national forests, and penalties for viola-
MOD ios heey secu eden noon ge maamgbae eons eae wea 4 June, 1897; 30 Stat., 35.
760 APPENDIX.

a

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 Oklahoma.
Fraudulently settling on public lands...... 2 May, 1890, s. 24; 26 Stat.,
92.

Chapter Twenty.—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 AATY.
COLLECTION OF DUTIES.

Chapter Two.—Qualifications, pay, and duties of

officers.
Officer failing to keep table of fees posted
MUDD eevcenigin Sek cons c  Aeal eo men e dicey) tad eal R. S., s. 2635.
Bribery of customs officer or employee...5 Aug., 1909, s. 28; 36 Stat.,
103.
R. S., s. 2636.
Officer demanding or receiving greater fee,,5 Aug., 1909, s. 28; 36 Stat.,
etc., than allowed by law............. 103.

Inspector, weigher, gauger, or measurer re-
ceiving fee, etc., other than allowed by law R. S., s. 2637.
False certification of shipment by inspector

or other officer........... 0.000 e eens R. S., s. 2637.
Customs officers owning vessels or engaging
in importation.....................00. R. S., s. 2638.

31 July, 1894, s. 19; 28 Stat.,
210.

Customs officers failing to render accounts
of expenditures.................0220,
Customs officers failing to keep and render
accounts and records of transactions. .... R.S., s. 2640.

(a S., 8. 2639.

Chapter Three.—Revenue-Cutter Service. E

Carrying or hoisting pendant or ensign of

revenue service by vessel not in service;
master liable............ 0.0 cece ee eee R. S., s. 2764.

Chapter Four.— Entry of Merchandise.

Vessel bound for port of delivery failing to

pay duties, etc., at port of entry; master

Na bl@t ccs asa datsia ape ieatecda aaa euasareaiemacwis R. S., s. 2772.
Vessel departing from port of arrival before

making report of entry; master liable. .R.S.,s. 2773.
Master failing to make report of arrival of

vessel at pOrtescccencws esa ge de oee ayaa R. S., s. 2774,
APPENDIX. 761

Chapter Four—Entry of Merchandise—Continued.

Master of vessel failing to make special re-

port of spiritsand wines............... R.S., s. 2775.
Master neglecting to obtain copy of report

from: Collectors ii ssccce ee actge een d eames 2 R. S., s. 2784.

: . R. S., 5.-2797. ean

Vessel having more sea stores than in en-{3 Mar., 1897, s. 17; 29 Stat.,

try; 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
manifest to Auditor for Treasury Depart}2 Mar., 1895, s. 9; 28 Stat.,
TMICH Back Acniiaciorxon edn ad oun MAR Heaton Menai 808.

Master failing to deliver duplicate mani-)R. S., s. 2802.
fests of merchandise for Mississippi}16 June, 1880; 21 Stat., 283.
River, ete:, ports. o< casvses tai eanes x

Master failing to deliver manifests for mer-) R. S., s. 2822.
chandise for Mississippi River, etc.,}16 June, 1880; 21 Stat., 283.
ports on arrival at port ofentry......... }

Master failing to deliver duplicate mani-
fests of merchandise for ports in district
of New Orleans.............2.00eceeee R. S., s. 2823.

Master failing to deliver manifests of mer-
chandise for ports in district of New Or-

leans 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 sur-
veyor of port on arrival................. BR. S., s. 2829.
Vessel bound for Natchez and Vicksburg
violating revenue laws..... is wn OOS SHINES RB. 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. 2
Making false statement in declaration..... 5 Aug., 1909, s. 28; 36 Stat.,
95.

fR. S., s. 2864.
oe false entry of imported merchan-}5 Aug., 1909, s. 28; 36 Stat.,
ISC ine sies aan cee eae a mms need 97.
Smuggling merchandise.......... wage aibinisaasivcd R. S., s. 2865.
Making or uttering false or forged invoice. R. S., s. 2865.

Chapter Five-—Unlading.

Unlading without permit................ R. S., s. 2867.
Transferring unlawfully from one vessel to

TIO LN OB sos ae casiecnae sseeaite ds autaceeeat asvemhev ahiderseocn a RB. S., s. 2868.
Unloading of merchandise at unlawful &

hours..... Nia aca & Giant's etapa Buren setae sar R. S., s. 2873.
Inspector neglecting duties............... R. S., s. 2877.

Landing of wines or spirits without indorse-
ment or permit.............200 ee eeaee R. S., s. 2883.
762 APPENDIX.

Chapter Five—Unlading—Continued.
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 mani-
POSE err aeectoae gitadows saturn ic wigVeeln Saval avin enesluate aver RB. S., s. 2887.

Chapter Six.—Appraisal.
Refusing to testify or swearing falsely be- — ee 1909, s. 28; 36 Stat.;
fore appraiser..............-00eeeaee

Chapter Seven.—The bond and warehouse system.
1 Mar., 1879, s. 12; 20 Stat.,
Failing toa remove or destroy, etc., stamps| 342.
on packages or casks that had contained 28 May, 1880, s. 12; 21 Stat.,
imported liquors................0005. 148.
1 Mar., 1879, s. 13; 20 Stat.,
Selling or having in possession empty cask| 343.
or package with undestroyed stamp;28 May, 1880, s. 13; 21 Stat.,
AXE. ots. 5d cue hte tees ad eR Rese 148.
Altering, defacing, or obliterating mark of
revenue officer on package of ware-

housed merchandise................... R. S., s. 2985.
nlawfully opening warehouse............ R. S., s. 2986.
‘raudulently removing or concealing ware-

housed merchandise...............-24:- R. S., s. 2987.

Failure to transport and deliver merchan-

dise from port in one collection district to

port in another district................. RB. 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 ee for

transportation etignstestd whe ele cbauara cen jagemmrenaials R. S., s. 2998,
Knowingly receiving mershandiee unlaw-
fully removed from car, vessel, etc.....R.S.,s. 2998.

Chapter Ten.—Drawback.
Relanding goods entered for drawback..../R. S., s. 3049.
24 July, 1897; 30 Stat., 195.
Making false entry for benefit of drawback. R. S., s. 3050.

Chapter Eleven.—Enforcement of customs laws.
Person in charge of beast or vehicle refusing

to allow search........ 0.0.0.0 0 cee e eee R.S., s. 3062.
Master obstructing or hindering officer from
Boarding: vessel cvccic iis as etanwx eee eeees R. S., s. 3068.

Articles separate from cargo missing, or
seals broken on arrival at port of entry;
MASEER ADC). essere ooo ave Bilsstn eaonews RB. S., s. 3069.
Unlawfully breaking locks and fastenings. . .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, ex- 22 June, 1874, s. 7; 18 Stat.,
cept in smuggling cases...............- 187.
22 June, 1874, s. 19; 18 Stat.
Officer offering to compromise claims for; 190.
PUGS CEC shed oid acenatgeaiacd ice can sotveianaweoaisonnice 22 Jan., 1875; 18 Stat., 303.
APPENDIX. 763

Chapter Twelve-—Commerce with contiguous coun-
tries.
Master or other person failing to deliver
manifests of goods from contiguous terri-
LOY scsacienses ak Pak a castenseni erm Means wtCE ora eres R. S., s. 3099.
Owner, master, etc., of vessel failing to pro-
ceed to places of destination named in

TNAN LOS b 24-6 eiassiievic assis evagionie siguaun ad aauaaee R. S., s. 3104.
Unauthorized person breaking, etc., sealed
packagesy Ct eiswis.ciainicy-scrattuarcsace aa ape eee R. S., s. 3105.

Receiving or depositing unlawfully imported
merchandise in building on boundary

TRL cla cioshes eae bathe terse vache tan Spec e an Lase R.S., s. 3108.
Shipping sea stores in excess of amount

NCUCHSHOY cc cuinn oe cuee on Oe he ay RAS. s. S112.
Owner failing to report saloon stores........ RB. S., s. 3113.

Unlading merchandise taken from one port

in United States to another in other than

specified hours................00eee eee R. S., s. 3120.
Masters of vessels engaged in foreign and

domestic trade on northern, etc., front-

tiers, 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 concerning mani-

fests and report and entry of vessels...... R.S., s. 3126.
Master of vessel failing to observe certain

rules of Secretary of Treasury concerning

entry of vessels laden with products of

British North America provinces........ R. S., s. 3129.

TITLE XXYV.

INTERNAL REVENUE.

Chapter One.—Officers.
Internal-revenue officers making false state-
ment or failing to render statement of

Sh POCS i oa catia de Suh He oS daca TO ASS R.S., s. 3158.
2 R.S., s. 3167.
Internal-revenue officers disclosing opera-}28 Aug., 1894, s. 34; 28 Stat.,
tions of manufacturers, etc............. 557.
RB. S., s. 3168.
Internal-revenue officers or agents beéOm-j1 Mar., 1879, s. 2; 20 Stat.,
ing interested in certain manufactures... 329.
Certain offenses of internal-revenue officers:
R.S., s. 3168.
Being guilty of extortion, etc., under;1 Mar., 1879, s. 2; 20 Stat.,
color of law c5 26 sikne ye ee swe 329.
Demanding or receiving other or/R.S.,s. 3168.
greater fees than those allowed by;1 Mar., 1879, s. 2; 20 Stat.,
LAW isrckans cron $ eae e aus Eun aa 329.
RB. S., s. 3168.
Neglecting to perform duties enjoined,1 Mar., 1879, s. 2; 20 Stat.,
by, daws.s2s4o<«seemeeyersme sedan’ 329.
R.S., s. 3168.
Conspiring or colluding to defraud the;1 Mar., 1879, s. 2; 20 Stat.,
United States...............005- 329.
R.S., s. 3168.

Making opportunity for person to de-}1 Mar., 1879, s. 2; 20 Stat.,
fraud the United States........... 329.
764 APPENDIX.

Chapter One—Officers—Continued.

(B.S., 8. 3168.
Enabling other person to defraud the{1 Mar., 1879, s. 2; 20 Stat.,
United States................... 329,
Permitting violation of law........... R. S., s. 3168.
1 Mar., 1879, s. 2; 20 Stat.,
329.
R. S., s. 3168.
Making false entry or signing false{1 Mar., 1879, s. 2; 20 Stat.,
COTUICATC s ote accSiied autqned ea ooh BRS 329.
R.S., s. 3168.
Failing to report knowledge of viola-;1 Mar., 1879, s. 2; 20 Stat.,
tion of revenue laws.............. 329.
Collectors issuing stamps before collection
Of (aX: soxgdeencensaraaeeasveter ee ears 1 Mar., 1879, s. 1; 20 Stat.,
327.
District attorney demanding or accepting
anything for compromise of violation of
internal-revenue laws..............-.-- R. S., 8. 3170.
Chapter Two.—Assessments and collections.
R. S., s. 3177.
Owner of premises refusing to admit reve Mar., 1879, s. 2; 20 Stat.,
nue officers or interfering with same...{| 329.
Making false return to collector........... R:S., s. 3179.
Chapter Three.—Special taxes.
RB. S., 8. 3239.

Failing to display special-tax stamp inj1 Oct., 1890, s. 26; 26 Stat.,
place of business...............2+0005 618.
R. S., ss. 3242, 3281.
+ Carrying on business as rectifier, liquor|8 Feb., 1875, s. 16; 18 Stat.,
dealer, etc., without Smee of special 310.
18%: carn iewes geet ie eenaeoe sees 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 pay-{/6 June, 1896, ». 4; 29 Stat.,
mental special lakes i vvisxks+eaxacuece 254,

Manufacturing adulterated or renovated{/9 May, 1902, s. 4; 32 Stat.,
butter without payment of special tax.\- 195.

Officer collecting special tax for rectifying,
etc., on premises less than 600 feet from
Gistiller ye 2 sis josiecd etietees nan oaedialsmanss 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 Unites States of tax............... R. S., s. 3257.
Failing to register stills.................0. RB. S., s. 3258.
Failing to give notice of intention to carry
on business of rectifier or distiller........ R. S., s. 3259.
Distiller failing to give bond.............. R. S., s. 3260. ma
28 May, 1880, s. 1; 21 Stat.,
145.
Collector approving bond before regulations
are complied with..............000000e BR. S., 8. 3261.
Setting up still without permit............ R. S., s. 3265.

Distilling on certain prohibited Bren .R
Breaking, etc., locks to cistern room, etc... .R. S., s. 3268.
APPENDIX. 765

Chapter Four—Distilled Spirits—Continued.
Failing to keep pipes at distilleries painted
as directed....... inosheacd ios Wag ars St atamalane aes R. S., s. 3269.
Building fence exceeding 5 feet in height
around distillery; refusing to furnish key

© ROCCE onda dew Sains mame Dawe wey oe oe S., s. 3275.
-(R.S., s. 3276.
Obstructing revenue officer from entering; 1 “Mar. 1879, s. 5; 20 Stat.,
istileryescravsnas eenenense sen en yaw 335.
Refusing to facilitate examination by in-/R.S., s. 3277.
ternal-revenue officer................. 1 Mar., 1879; 20 Stat., 329.
Signs to be put up by distillers, rules con-
cerning, and penalties for violation....... B.S., s. 3279.
Carrying grain, etc., to distillery where there
AS NOLS BM cacao dies Pa deere fe sated gna bane R.S., 8. 3279.
R. S. .s. 3282.
Failing to: give bond for carrying on dis-;1 Mar., 1879, s. 5; 20 Stat.,
AMlery 55 shies Snerdiois arisen epee wees 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.
Using still in forbidden hours.............. R. S., s. 3284.
Using material, etc., and removing spirits
in absence of storekeeper............... R.S., s. 3284.
R.S., s. 3286.
Distiller refusing to draw off water and;1 Mar., 1879, s. 5; 20 Stat.,
clean worm tubs...............-.000- 335.
Gauger employing distiller, etc., to use
brands or perform his duties............ R. S., s. 3290.
Gauger making false inspection, Oe sence R. S., s. 3292,
Removing or concealing spirits contrary to
DEW, asics anne diceanenertds Gna een lachiea Avante aun Rite sa R.S., s. 3296.

Transfer of spirits, etc., from one ware-)3 Mar., 1877, s. 7; 19 Stat.,
house to another; rules concerning, and }394.
penalties for violation................

Removal of fruit brandy to special ware-(3 Mar., 1877, s. 11; 19 Stat.,
house; rules concerning and penalties; 395. 18 Oct., 1888; 25
for violation........... 200000 e eee ees Stat., 560.

Removal of distilled spirits from distillery
warehouse to ‘general bonded warehouse; |28 Aug., 1894, s. 59; 28 Stat.,
rules concerning, and penalties for viola-{ 566.

Officers of scientific institutions using alco-) R. S., s. 3297.
hol withdrawn for scientific purposes for}3 May, 1878; 20 Stat., 48.
other purposes.............02 000 eeeee
Removal of distilled spirits from distillery
warehouse to sorghum factories; rules
concerning, and penalties for violation. ...3 Mar., 1891: 26 Stat., 1050.
Reusing stamps or bottles and other viola- {8 Mar., 1897, &. 6 29 Stat.,

lations of law concerning same.......... 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 storekeeper

OL GIStUTER). oo...) 2 sictversunteratenersioaier sd coven cet R. S., s. 3305.
Issuing false weights............-.-.6+-+ R. S., s. 3306.
Using unregistered materials.............. R. S., s. 3306.

28 May, 1880, s. 7; 21 Stat.,
147.

Carrying on business of distiller after time

(i S., s. 3310.
fixed in notice of suspension............
766 APPENDIX.

Chapter Four.—Distilled Spirits —Continued.
Breaking, etc., any lock, seal, etc., to fur-

mace, Still) CtGs. since cears cio tina oe haa aie aaa R. S., 5.3311.

Revenue officer using, etc., stamps contrary
LOM AWiicsrnies once bss oa eae hae en SRL R. S., s. 3316.
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/(R. S., s. 3318.
rectifiers and distillers, and penalties for;1 Mar., 1879, s. 5; 20 Stat., -
MOL At ON initia ston ana 6 aan bane HieoM 339.

Purchasing more than twenty gallons of
distilled spirits from person other than
authorized rectifier. cicc. ia cecaeeves as R.S., s. 3319.

Rectifier or dealer refusing to make return Me S., s. 3323.
of distilled spirits received and sent out. \16 July, 1892; 27 Stat., 200.

Failing to efface and destroy stamps, etc..... R. S., 8. 3324.
Transportation company carrying empty
casks with uneffaced stamps............ R. S., s. 3324.
Buying or selling empty casks having in-
~ SPOCHOM THAPKS:, bcijs.6 i: sce a6 elddee Sudan bo4 wi R.S., s. 3325.
Changing stamps; shifting spirits.......... R. S., s. 3326.
Affixing imitation stamps on packages of mer Feb., 1875, s. 17; 18 Stat.,
distilled spirits:s< ol sss rts soa! gic se gee y ace 311
Removing distilled spirits during unlawful
OUTS. cnc wins Mae d eben SEA De deb wede es B.S, ws. 3327.
Counterfeiting, altering, or reusing stamps Er
on imitation wines...........-.........- R.5., s. 3328.
Unlawfully using wine spirits, etc......... 1 Oct., 1890, s. 44; 26 Stat.,
622.
Using wine spirits which have not been tax-/1 Oct., 1890, s. 48; 26 Stat.,
WOU oo pec 04 8 CERES Oe es HR eS 623.
Fraudulently claiming drawback on dis-
AACA! SHUI i 4 fercisrd -aacaun,n ase, cuaweh“d a accned en eee R.S., s. 3330. .
Relanding of distilled spirits.............. R. S., s. 3330.

Unlawful to use or sell alcohol withdrawn)7 June, 1906, s. 2; 34 Stat.,
for denaturing, for purposes other than? 217.
arts and industries....................
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{ R. S., s. 3342.
packages containing fermented liquor. . .| 3 Mar., 1875; 18 Stat., 484.
Affixing fraudulent stamp............... R. S., s. 3342.
: 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 pack-
age without destroying or defacing stamp.R. S., s. 3344.
Removing lager beer from depot or ware-

house without affixing stamp............ R.S., s. 3345.
RB. S., s. 3346.
Making, using, etc., false stamp, die, or{1 Mar., 1879, s. 5; 20 Stat.,
PCLIMNM be ciieina.daseleuedehoa aces ods aah hk Ae 340.
R. S., s. 3346.
Using stamp fraudulently............... 1 Mar., 1879, s. 5; 20 Stat.,
340.

Removing name of manufacturer on pack-
ABC iac arcs asus aetna wera Wen md Ate RO ae R. S., 8. 3349.
APPENDIX. 767

Chapter Five—Fermented Liquors—Continued. .

Chapter Six.—Tobacco, snuff, and opium.

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 unlaw-}18 June, 1896; 26 Stat., 161.
fully bottling on brewery premises......

R.S., s. 3355.
Tobacco manufacturer failing to procure;1 Mar., 1879, s. 14; 20 Stat.,
or post certificate.................0.. 344,
2 R.S., 8. 3355.
Tobacco or snuff manufacturer failing to{1 Mar., 1879; s. 14; 20 Stat.,
BiVE DOW 025203. eee hg wee attearea sential ie 344,
Manufacturer failing to put upsign.........R.S., s. 3356.
Manufacturer failing to give annual inven-
Pol Yess +09 soe 494 Us ons Gs Hawke oo Me aos R. S., s. 3358.

R.S., s. 3360.
Books of dealers in leaf tobacco; rules con-;1 Mar., 1879, s. 14; 20 Stat.,
cerning, and penalties for violation...... 345.
: R.S., s. 3363.
Selling or offering for sale tobacco not put;1 Oct., 1890, s. 31; 26 Stat.,
up in packages and stamped........... 619.
Purchasing tobacco or snuff not branded
or stamped.............. 03.0000 ee eee R.S., s. 3366.
Manufacturing tobacco on shares, or by one
person for another; rules concerning, and
penalties for violation................. R; &., 8. 3370.
Tobacco and snuff; rules governing the .
removal and sale of, and penalties for
VIOLA OD 5. in weds care eS cael aes eee eras R.S., s. 3372.
Removing tobacco fears manufactory or
offering for sale, etc., without stamp....R.S.,s. 3374.
Affixing false stamp, etc................0. KiB. B 678.
Failing to destroy stamps on empty pack-
OS ay fies des ioc on Rawr so dandeeec alg Mags isdn wots R.S., s. 3376.
Selling packages of tobacco or snuff having
fraudulent stamp affixed............... RB. S., s. 3376.
Importers of cigars and tobacco failing to(R. S., s. 3377.
pay same tax as required of domestic;1 Mar., 1879, s. 14; 20 Stat.,
manufacturers.............0.0.000005 346.
Officer of customs permitting packages Lh S., s. 3377.

 

tobacco or snuff to pass from his hands\|1 Mar., 1879, s. 14; 20 Stat.,
before the provisions of law have been{ 346.
complied with..................00005 J
Failure of dealers in, manufacturers and er ae 1909, s. 35; 36 Stat.,
peddlers of, tobacco to register.........
Retail dealer in leaf tobacco ‘refusing to)
- Aug., 1909, s. 35; 36 Stat.,
111.

keep books, or to furnish information;
or making false entry, or false state-
INEN 1 UChr s 2 ye sis) 5.2.4 nada Heedea nema ce ac tunke J

Peddlers of tobacco failing to obtain and{1 Oct., 1890, s. 29; 26 Stat.,
618.

ie S., s. 3383.
exhibit certificate................0005 {
R. S., s. 3384.
Peddling tobacco unlawfully............. 1 Mar., 1879, s. 15; 20 Stat.,
346.
Relanding tobacco, snuff, etc., shipped for/R. S., s. 3385.
EXPOMtation 66a cose a eatery oe Nees ds Gees eee 8 Aug., 1882, 22 Stat., 372.

tured in United States, and who mayen-} 621.

Rules concerning tax on opium manufac-)1 Oct., 1890, s. 36; 26 Stat.,
gage in manufacture..................
768 APPENDIX.

Chapter Six—Tobacco, snuff and opium—Continued.
Rules governing the maufacture of opium...1 Oct., 1890, s. 37; 26 Stat.,
620.
Rules concerning stamps to be affixed tof1 Oct., 1890, s. 38; 26 Stat.,
opium imported into United States..... 621.

Chapter Seven.—Cigars. :

R. S., 8. 3387.
Manufacturing cigars without giving bond;1 Oct. 1890, s. 35; 26 Stat.,
620.

Cigar manufacturer failing to display sign...R.S., s. 3388.
Annual inventory; rules governing, and

penalties for violation.................. R. S., s. 3390.
R. S., 8. 3392.
Cigars; rules relating to packing, and pen-;1 Oct., 1890, s. 32; 26 Stat.,
alties for violation.................... 619. ep
R. S., ». 3393. ;
Manufacturer of cigars neglecting to affix;1 Mar., 1879, s. 16; 20 Stat.,
label to bOXs ec scasdecascuanss are ss 348.

Packages of tobacco, snuff, cigars, and/R. S.,s. 3394.
cigarettes not to contain lottery, etc.,;5 Aug., 1909, s. 33; 36 Stat.,

TiCk ets isidac-eaccraarnas awe. Sue E.H Srabickb 110.
R. S., 5. 3397.
Removing cigars from manufactory with-;1 Mar., 1879, s. 16; 20 Stat.,
out properly packing................. 348.
RB. S., ». 3397.
Using counterfeit stamp, or making fraud-41 Mar., 1879, s. 16; 20 Stat.,
ulent use of stamp..................-. 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

SCAT D sh cncusesad diegs oSos. Gud este dose ale eae R.S., s. 3400.
Officer prmitting imported cigars to pass

out of his hands without compliance with

law by the owner.............--.--00+- R. S., s. 3402.
Selling imported cigars not packed accord-

IN to law ..0.3 200 803¢e 826 ess eK Os Hee R. S., s. 3403.
Purchasing, ete., cigars not branded or

stamped according tolaw.............. R.S., s. 3404.
Neglecting to destroy stamps on empty

boxes or disposing of boxes with unde-

stroyedistampSwss: 2% seuies cam cece ot ees R. S., s. 3406.

Chapter Eight.—Oleomargarine, adulterated but-
ter, and filled cheese. oa
Rules governing the packing and selling of (2 Aug., 1886, s. 6; 24 Stat.,
oleomargarine, and penalties for viola-; 210.

AION 4 deanihnensiaraunnrtvave muananary donated. oceania
Manufacturer neglecting to affix label onf/2 Aug., 1886, s. 7; 24 Stat.,
package containing oleomargarine...... 210.

Officers of customs permitting packages
of oleomargarine to pass out of his hands|2 Aug., 1886, s. 10; 24 Stat.,
before owner’s compliance with stamp/ 211.
regulations, etc...............0000 eae

Removing, defacing, etc., stamps, etc.. onf2 Aug., 1886, s. 15; 24 Stat.,

packages of oleomargarine............. 217.
Manufacturer of oleomargarine attempt-{2 Aug., 1886, s. 17; 24 Stat.,
ing to defraud United States of tax...... 212.

Purchasing, etc., oleomargarine not brand-{2 Aug., 1886, s. 11; 24 Stat.,
ed, etc., according tolaw.............. 211. \
APPENDIX. 769

Chapter Eight—Oleomargarine, adulterated butter,
and filled cheese—Continued.
Purchasing, etc., oleomargarine from
manufacturer who has not paid special ;2 ae 1886, s. 12; 24 Stat.,
211

Failing to destroy stamps on empty oleo-{2 Aug., 1886, s. 13; 24 Stat.,
margarine packages..................- 211.
Selling empty packages on which stamps/2 Aug., 1886, s. 13; 24 Stat.,
are not destroyed...............000005 211,
Manufacturer of oleomargarine failing to/2 Aug., 1886, s. 12; 24 Stat.,
comply with laws...............0-00- 212.
Selling adulterated butter in other than/9 May, 1902, s. 4; 32 Stat.,
_ original packages..................05 195
Manufacturer neglecting to affix specified /9
label on adulterated butter............
Failing to label ‘““Renovated” or “‘Process”’ {9 May, 1902, s. 5; 32 Stat.,
butter assuch............0 0000 c cease 197.
1 Oct., 1890, s, 41; 26 Stat.,
Wholesale dealers in oleomargarine or in| 621.

ee 1902, s. 4; 32 Stat.,
1

adulterated or renovated butter failing;9 May, 1902, s. 6; 32 Stat.,
to keep books...............0.2000 ees 197.
Filled cheese; rules for packing and retail-{/6 June, 1896, s. 6; 29 Stat.,
ing and penalties for violation.......... 254,
Dealers in filled cheese neglectio to display/{6 June, 1896, s. 7; 29 Stat.,
SIGD os. sav da see art at sae anda een a tine ata olen 2s 255.
Wariteeturer of filled heeds neglecting/6 June, 1896, s. 8; 29 Stat.,
to affix label. s2.6aevnaaed axa de wer ox 255.
Purchasing filled cheese not branded or/6 June, 1896, s. 12; 29 Stat.,
StAM PE” sic: sie aes Gdn darace soe due dar haceauaslace 256.
Purchasing filled. cheese from manufac-/6 June, 1896, s. 13; 29 Stat.,
turer who has not paid special tax....... 256.
Failing to destroy stamps on empty pack- 6 June, 1896, s. 14; 29 Stat.,
ages of filled cheese...............5... 256.
2 Aug., 1886, s. 5; 24 Stat.,
Notices, inventories, books, to be kept by| 210.
manufacturers of oleomargarine, adulter-;6 June, 1896, s. 5; 29 Stat.,
ated butter, and filled cheese; rules con-| 254.
cerning, and penalties for violation...... 9 May, 1902, s. 14; 32 Stat.,
195.

Chapter Nine.—Mixed flour.
Neglecting to brand, etc., packages ot mix-/13 June, 1898, s. 37; 30 Stat.,
ed flours x sass fea oe en ss eww bee Ren ee 467.
Mixed flour; rules governing the uring up) 13 June, 1898, s. 38; 30 Stat.,
and retailing of, and penalties for viola-} 468.

LIOD I og Decctnokins win wea vata Sacer eoba Wea es
Manufacturer of mixed flour neglecting tof13 June, 1898, s. 39; 30 Stat.,
affix label and notice................. 468.

Mixed flour; rules for packing in barrels, {13 June, 1898, s. 40; 30 Stat.,
etc., and penalties for violations........ 468.
, Purchasing, etc., mixed flour that has not/13 ae 1898, s. 42; 30 Stat.,

been branded, OE donaan coacmn Salone
Purchasing mixed flour from maker, etc., {13° ae 1898, s. 43; 30 Stat.,
who has not paid special tax........... 469.

Exporter of mixed flour subject to same/13 June, 1898, s. 44; 30 Stat.,
provisions as maker, etc.......... 69.

Penalty for second offense of violation ‘of t June, 1898, s. 48; 30 Stat.,
laws concerning mixed flour............ 4

Chapter Ten.—Banks and bankers.
Banker neglecting to make monthly return .R. S., s. 3415.

49
770 APPENDIX.

Chapter Eleven.—Corporations.
Revenue officer, etc., divulging informa-)5 Aug., 1909, s. 38; 36 Stat.,
tion obtained in discharge of duty incol-; 116.
lection of corporation tax..............

Chapter Twelve-—Playing cards.
Tax stamps on playing cards; rules govern-{28 Aug., 1894, s. 39; 28 Stat.,
ing and penalties for violation.......... 560.
Manufacturer of playing cards failing to/28 Aug., 1894, s. 40; 28 Stat.,
560.

PO DIS CEL sir aces seesioenn, sekee iota neromanats
Selling, etc., playing cards without affixing/28 Aug., 1894, s. 43; 28 Stat.,
BLAM Doseck oo see hee k ee See es ee ex 562.

Removing stamp from playing cards, or{28 Aug., 1894, s. 44; 28 Stat.,
fraudulently using stamp............. 562.

Selling, etc., or concealing, etc., playing{28 fii 1894, s. 45; 28 Stat.,
cards without stamps................. 562.

Manufacturer of playing cards failing tof{28 Aug., 1894, s. 46; 28 Stat.,
POS 108k cass sous ews dO es wee eee p62,

Chapter Thirteen.—Provisions common to several
objects of taxation.
Distillers, etc., and manufacturers of tobac-
co, etc., failing to do things required, and
doing things forbidden by law........... R. S., s. 3456. 2
24 July, 1897, s. 10; 30 Stat.,
Inclosing lottery tickets, etc., in packages| 206.

of tobacco, etc..............-20.200055 1 July, 1902, s. 2; 32 Stat.,
: 715.
Fraudulently claiming drawback.......... R. S., s. 3443.
8 Feb., 1875, s. 25; 18 Stat.,
312.
Removing liquor or wines under other than
tradé NAMES ..0.0.0c0n rc evecswrivacens R. S., s. 3449.
Removing, concealing, etc., articles with :
intent to evade United States tax........R.S.,s. 3450.
Fraudulently executing documents required
by interna]-revenue law.............-.. BR. 86-345.

Having property in possession with intent
to sell in fraud of law, or to evade taxes. R.S., s. 3452.
Selling, purchasing, etc., empty stamped ~

DOCK ARES csiaizis. aca eetgrcrm a tren Pane, kimi teann Rae ae RB. S., s. 3455.

Manufacturing boxes, barrels, etc., unlaw-
fallystaniped ves access eayeemaeg Hea xe R. S., s. 3455.
R. S., ». 3429.

Forging or counterfeiting stamps, dies, or}1 Mar., 1879, s. 17; 20 Stat.,
plates; using forged or counterfeited| 349.
stamps, dies, or plates; cutting, tearing,;28 Aug., 1894, s. 42; 28 Stat.,
etc., impression of stamp, die, or plate,| 561.
or fraudulently using same; having|13 June, 1898, s. 8; 30 Stat.,
¢ stamps, dies, or plates in possession un-| 452.
DEVE UTE Y io. tniesens a sndveos hacediaees do tah oh is arabia

TITLE XAVIITI.

NATIONAL BANKS.

Chapter One.—Organization and powers.
Using word “‘National’’ as part of corporate
name without authority................ R. S., 5. 5243.
APPENDIX. 771

Chapter Two.—Circulating notes.
Issuing circulating notes to unauthorized

ASSOCIATION: 6c oa nee s nex Sage ee ees ee aee R. S., s. 5187.
Chapter Three.—Regulation of the banking busi-
ness.
Holding United States notes as collateral. . .R. S., s. 5207.
Falsely certifying checks................. 12 July, 1882, s. 13; 22 Stat.,
: 166.
Embezzlement, etc..................0005 R. S., s. 5209.
Failing to make report of dividends....... R. S.; s. 5213.
Failing to make half-yearly return of circu-
Lat ON Geers se ea ee wis osmt ee ete nee ee Risa & 5215,

TIftLe ARI.

THE PUBLIC MONEYS.

Chapter One.—Custody.
Assistant treasurers accepting commissions

or other perquisites................... R. S., s. 3597.
Clerk acting as assistant treasurer subject
to same penalties..................45. R.S., s. 3613.

Withholding moneys due the United States .R. S., s. 3619.

TITLE XAX,

THE PUBLIC DEBT.

Counterfeiting, etc., certificates of indebtedness.13 June, 1898, s. 32; 30 Stat.,
466.

TITLE AXXI.

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 return
PHO Ob ei. das chaps ndesuhiness eBaewn hud ante ee dea R. S., s. 3746.

Employees of United States having interest in {22 June, 1874, s. 10; 18 Stat.,
Indian contracts, etc.

TITLE XXXIV.

THE PUBLIC HEALTH AND MARINE-HOSPITAL SERVICE.

Chapter Two.—Sanitation and quarantine.
Vessel from foreign port entering port in{15 Feb., 1893, s. 1; 27 Stat.,
violation of quarantine law............ 449.
Vessel from foreign port to secure bill of /15 Feb., 1893, s. 2; 27 ‘Stat.,
health before sailing 450.
772 APPENDIX.

'

Chapter Two—Sanitation and quarantine—Continued.

Vessel or person entering within limits of) 19 June, 1906, s. 4; 34 Stat.,
quarantine grounds or stations or de- 00.
parting therefrom without permission. . .

Owner or master of vessel violating rule
regulating inspection of vessels or mak-|19 June, 1906, s. 4; 34 Stat.,
ing false statement as to sagitary condi-({ 300.
tion of vessel iin. 5 oii. ck ey yee cet oe J

Person trespassing on quarantine reserva-
tion or vessel entering in wiplabon of

QUATANTING. 0. csi ba ee nee ee 1 Aug., 1888; 25 Stat., 355.
Violating regulation for enpprescine con-{27 Mar., 1890, s. 1; 26 'Stat.,
tagious diseases................00 cues 31.

Quarantine officer or person employed in)27 Mar., 1890, s. 2; 26 Stat., - ee
service violating regulation for prevent-; 31. :
ing spread of contagious disease........ :

Common carrier or officer or agent thereof - Mar., 1890, ». 3; 26 Stat.,
violating quaraintine law or regulation..\ 32.

TITLE XXXVII.
FOREIGN RELATIONS.

Violating safe-conduct or assulting public min-

ISCOD, oe by eeleiens cass o kes Goecslign: aca's que oa a ag ee a R. S., s. 4062.
Suing out writ or process, etc., against public
MINIS. 365 es SR as Mee wens Meee eH R. S., s. 4064.
Failing to appear or refusing to testify in suit
pending in foreign country.................. R. S., s. 4073.
Issuing false passport, etc..............-- Taine aid R. S, s. 4078.
14 June, 1902, s. 3; 32 Stat.,
386.
Murder, and insurrection against certain coun-
tries....... “Wi cause BBP ay URES ab Eee GE cam ea haaee OMe IES 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
INGIANS 23.sicelon del dng Agee seats R.S., s. 2078.

Chapter Two.—Performance of treaty obligations.
Receiving money from Indians under pro-
hibited contracts..............2-20000- 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 in-

cite Indians to war. .R. S., s. 2113.
Attempting to negotiate treaty with Indians
without authority............. 0.00 e ees 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.
APPENDIX. 773

Chapter Four.—Governmeni of Indian: countries.
Purchasing cattle of Indians without con-
sent of agent........... 00.0 cece eee “4 July, 1884; 23 Stat., 94.
Residing in Indian Country as trader with- i S., s. 2133.
outa: license: «cessaw vnanane tice Sey 0% 31 July, 1882; 22 Stat., 179.
Foreigner going into Indian country with-

out passport......... 0... cee eee eee R.S., s. 2134.
Purchasing certain pecbies articles from

EN GANS seciscctinsiecans: eecinyp Beigna aac we mee gaa R.S., s. 2135.
Huting on Indian lands..... ne wanigee ease R. c. s. 2137.
Removing cattle, etc.. from Indian country .R. S., s. 2138.
Selling intoxicating liquors to Indians...... RrS., 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................. Riz San & 2143.
Forgery and mail depredations in Indian

CONE ds es Soa Rew ba aaa wok bone pENeS R. S., s. 2144,

Returning to Indian country after removal.R. S., s. 2148.

TITLE XAXRIX.

PATENTS.
Falsely marking, etc., articles as patented....... R.S.,s. 4901.
TITLE XLII.
COPYRIGHTS.

Failure of proprietor of copyright to deposit)4 Mar., 1909, s. 13; 35 Stat.,
with Register of Copyrights copies of copy-+ 1078.
righted words............ 00000. c ec eeuee

Making false affidavit, etc., for purpose of ob-{4 Mar., 1909, s. 17; 35 Stat.,

taining registration of copyright............ | 1079.
Willfully infringing copyright for profit......... 4 Mar., 1909, s. 28; 35 Stat.,
1082.

uncopyrighted article, or knowingly issuing} 1082.

Fraudulently giving notice of copyright upon) 4 Mar., 1909, s. 29; 35 Stat,
or selling article bearing such false notice.

TITLE XLII.

PENSIONS.
Chapter One.—Wars prior to eighteen hundred and
. sixty-one.
Making false oath concerning Indian war{27 July, 1892, s. 3; 27 Stat.,
PENSIONS) rcs er are ern ee a a a eck en eae \ 282.

Chapter Five-—Applications and attorneys.
Making false affidavits, certificates, vouch-/R. S., s. 4746.
TS sy CLC icistcnadateini ies ate rerettareacers aaa ac 7 July, 1898; 30 Stat., 718.
27 June, 1890, s. 4; 26 Stat.,
Attorney or agent charging unlawful fee or| 183..
witholding pension from pensioner... .{19 Apr., 1908, s. 3; 35 Stat.,
64.

Agent or attorney charging unlawful fee for :
securing increase of pension............. 3 Mar., 1891; 26 Stat., 1082.
‘774 APPENDIX.

Chapter Five—Applications and attorneys—Continued. °

(B.S., 8. 5485.
Charging excessive fees™in pension or{\4 July, 1884, s. 4; 23 Stat.,
bounty land cases...............20005 101.

10 Mar., 1902; 32 Stat., 62.
Receiving compensation for securing legis-|24 Apr., 1906; 34 Stat., 133.
Tato apie iu hye ae deaparcoennae 28 May, 1908, s. 1; 35 Stat.,
419,
Claiming fee, etc., for securing pension
forarmy NUPSE: 5. 2c dias eda weatns oars 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 papers
without consent.................0000- 21 May, 1872; 17 Stat., 137.

TITLE XLIV.

TERRITORIES AND INSULAR POSSESSIONS.

Chapter One.—Provisions common to all the Terri-
tories.

Owners of coal mines failing to comply with)3 Mar., 1891, s. 7; 26 Stat.,
regulations concerning machinery, venti-} 1105.
TAUON OU cn cee Pda e eh exe Eo ee

Employing children in mines............. 3 Mar., 1891, s. 12; 26 Stat.,

1105.
Chapter Two.—New Mexico, Arizona, and Okla-
homa.

Railroads failing to have stations at town/{8 Aug., 1894, ss. 1, 2; 28 Stat.,

SILER aac ta doh ashieesinmaess ocaaane ee cnee eens «263.

Chapter Three.—Alaska.
Clerk of court failing to account for fees « June, 1900, s. 16; 31 Stat.,

TOCOIV EG 3 2.605 cock se ede dhe dcac nied aye Baten e
Person appointed road overseer refusing to

BONG ok Abie he wane tus riawicneake an dante 9a 27 Apr., 1904; 33 Stat., 392.
Road overseer failing to deliver records,

etc., tO SUCCESSOF. 4.466 c ee crane eence 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

WORN OU ac i aca hon eeheedcnegews 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 per-
sons in charge of harbor works........ 8 Feb., 1891; 26 Stat., 766.

Chapter Two.— Obstructions to navigation.
Regulations concerning the construction of)3 Mar., 1899, s. 12; 30 Stat.,
bridges, wharves, etc., and penalties for} 1151.
violation

20 Feb., 1900; 31 Stat., 32.
APPENDIX. 775

Chapter Two—Obsiructions to navigation—Continued.
Violating rules of Secretary of War con-(19 Sept., 1890, s. 6; 26 Stat.,
cerning dumping of refuse in navigable, 453.
WALETS: Sava iodin iumnciahe uneaiiee reeaaiin os Creu Gn

18 Aug., 1894, ss. 6, 7, 8; 28

Stat., 363.
3 Mar., 1899, s. 13; 30 Stat.,
1152.
Depositing refuse in navigable waters; ob-{3 Mar., 1899, s. 16; 30 Stat.,
structing channels, etc................ 1153.

18 Aug., 1894, s. 5; 28 Stat.,
Rules concerning drawbridges, and penal-| 362.
ties for violation...» ................ 13 June, 1902, s. 6; 32 Stat.,
374.
18 Aug., 1894, s. 4; 28 Stat.,
Rules concerning the use of canals, and| 362.
penalties for violation................ 13 June, 1902, s. 11; 32 Stat.,

Rules concerning floating timber and logs, {9 May, 1900, s. 2; 31 Stat.,
and penalties for violation............. 172.

Chapter Three.—Provisions applicable to particu-
lar rivers, harbors, and canals.
(11 Aug., 1888, s. 5; 25 Stat.,
Violating rules for protecting South Pass,| 424.
Mississippi River.................0-5 19 Sept., 1890, s. 3; 26 Stat.,

Violating rules for protecting reservoirs at

headwaters of Mississippi River....... 11 Aug., 1888; 25 Stat., 419.
‘(16 May, 1888, s. 2; 25 Stat.,
151.
Violating regulations for protecting certain|6 Feb., 1893, s. 2; 27 Stat.,
anchorage grounds................... 431.
6 June, 1900, s. 2; 31 Stat.,
682.

(6 Mar., 1896, s. 3; 29 Stat., 54.
Violating regulations for anchorage of ves-|26 Apr., 1906, s. 1; 34 Stat.,

sels in St. Marys River................ 136.
Refusing to obey instructions of harbor-{2 Mar., 1895, s. 2; 28 Stat.,
master at Washington, D.C............

Depositing refuse, etc., in Potomac River. .19 May, 1896, s. 3; 29 Stat.,
27

tion of South and Southwest passes of} 818.

Willful violation of regulations for naviga-) 3 Mar., 1909, s. 5; 35 Stat.,
Mississippi River

Chapter Four.—New York Harbor.
Depositing refuse in New York Harbor..... 29 June, 1888, s. 1; 25 Stat.,

209.
Master, etc., of vessel, towing scow, etc., {29 June, 1888, s. 2; 25 Stat.,
loaded with refuse..................- 209

29 June, 1888, s. 3; 25 Stat.,
Moving scow, etc., loaded with refuse with-| 209.

OE TAA ose sia di saeco ardor ude meee 18 Aug., 1894, s. 3; 28 Stat.,
360.

29 June, 1888, s. 3; 25 Stat.,
209.

Dumping refuse, etc., in other place than|18 Aug., 1894, s. 3; 28 Stat.,
specified in permit................... 361.

28 May, 1908, s. 3; 35 Stat.,
426.
776 APPENDIX.

Chapter Four—New York Harbor—Continued.
29 June, 1888, s. 3; 25 Stat.,

Bribing inspector.................0.0.5 209.
18 Aug., 1894, s. 3; 28 Stat.,
362.
29 ype 1888, s. 3; 25 Stat.,
Failing to indorse and return permit... 209

18 Aug., 1894, s. 3; 28 Stat.,
362.

Violating rules concerning disposition of f29 June, 1888, s. 4; 25 Stat.,
dredged matter............-..2-0-00s 09.

Fishing for shellfish, or interfering with{18 Aug., 1894, s. 2; 28 Stat.,
navigation in New York Harbor...... 360.

Chapter Six.—California Debris Commission.
Injuring, etc.,any dam or work erected un-|1 Mar., 1893, s. 22; 27 Stat.,
der the provisions of this title and chap-;+ 510.

Mining by hydraulic process so as to in- {* Mar., 1893, s. 22; 27 Stat.,
jure navigable waters................. 510.

LLTLE ALV1I.
THE POSTAL SERVICE.

Chapter Two.—City, rural, and immediate de-
livery.
Special-delivery messenger deemed postal)4 Aug., 1886, s. 4; 24 Stat.,
employee and to be subject to same; 221.
penaltiesises cagievcGaeeseme res se ene .
3 Mar., 1903, s. 4; 32 Stat.,
1176.

Chapter Eight.—Carrying the mail.
Surety on bond of bidder for carrying the) R. S., s. 3964.
mail willfully swearing falsely........ 11 Aug., 1876, s. 246; 19 Stat.,
129.
Combining to prevent bids for carrying the
TOA Ae peace gen ys hes els dees wile a a lea ves R. S., s..3950.

TITLE ALYV EI:

COMMERCE AND NAVIGATION.

Chapter One.—Registry and recording.
Master making false oath to secure registra-

tion Of vessel. cis acco n a pipe ve Ae ee ey R.S., s. 4144.
R.S., s. 4146.
Failing to deliver up certificate when re-416 Jan., 1895, s. 2; 28 Stat.,
QUITE: 235-305 sings hsatik dobseas og Rhea Somsdaeus 624.
R.S., s. 4153.
Failing to have tonnage number marked 19 June, 1886, s. 5; 24 Stat.,
OM NESSE], CLC Radar sean tk Oe hae eS 81.

Failing to provide space for crew in vessel. .3 May, 1897, ». 2; 29 Stat.,
743,

Failing to surrender certificate granted pur-

CHASEI angers ene case Meet it eh eegen Ag R. S., s. 4160.
Failing to surrender certificate granted
BOON thea oS ba ee BOL eA Reb eT RS BEY R.S., s. 4162.

Failing to surrender certificate obtained .
upon loss of original................-.. BR. S., s. 4168.
APPENDIX. dit

Chapter One—Registry and recording—Continued.

Failing to register anew when required..... R.S., s. 4169.
Failing to report change of master......... R. S.. s. 4171.
R.S., s. 4177.
Failing to have number carved, etc., on,19 June, 1886, s. 6; 24 Stat.,
beaMraeress oe enc. doe ce enmen eee 81.
B.S., s. 4178.

Rules governing painting of name on stern; 20 Jan., 1897, s. 1; 29 Stat.,
of vessel, and penalty for violations:.... 91.

Making false register, certificate of registry,
or giving false information as to descrip-

tion of vessel, etc... 00... ee R. S., s. 4187.
Officers neglecting duties................. BR. S., s. 4188.
Making or using forged sea letters, pass-

ports, certificates of registry, etc......... RB.S., s. 4191.

Chapter Two.—Clearance.and entry.
Vessel departing from foreign port without
delivering manifest and obtaining clear-

LING Cis, recite vaca eoapitras 0 cae todiviie rep es a aac To R.S., s. 4197.
Master of foreign vessel failing to deposit
papers with consul, etc., on arrival....... R. S., s. 4209.
Foreign consul delivering papers to master
before clearance.................00005 R.S.,s. 4211.
R.S., s. 4213. a
Master failing to furnish statement to col-;26 June, 1884, s. 13; 23 Stat.,
lector of services rendered by consul.. 56.
: R. S., s. 4146.
Pleasure yachts, etc., engaging in trade,}16 Jan., 1895, ss. 4-6; 28
and otherwise violating laws........... Stats., 625.

Chapter Four.—Emigrant vessels.
Rules concerning compartments for Sl Aug., 1882, s. 1; 22 Stat.,
grants, and penalties for violation....
Rules and regulations concerning berths ep Aug., 1882, s. 2; 22 Stat.
emigrants, and penalties for violation... 186.
Rules concerning ventilation, hygiene, etc.,)2 Aug., 1882, s. 3; 22 Stat.,
of passenger decks, and penalties for vio-; 187.

Walon inten duty an hones + ante ees aioe
Rules governing food, meals, etc., and/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 vidlation........... 000000 e ce eee ee

Rules concerning disciplme and cleanliness, {2 Aug., 1882, s. 6; 22 Stat.,

and penalties for violation............. 188.

Officers, seamen, etc., visiting passengers’/2 Aug., 1882, s. 7; 22 Stat.,
apartments.......... 0. cc eee eens 189.

Rules for carrying explosives, horses and/2 Aug., 1882, s. 8; 22 Stat.,
cattle, etc., and penalties for violation. . . 189.

2 Aug., 1882, s. 19; 22 Stat.,
Master permitting the boarding of vessel| 189:
by other than specified persons......... 31 Mar., 1900, ss. 1, 2; 31
Stat., 58.
5 : 2 Aug., 1882, s. 9; 22 Stat.,
Rules of Secretary of Commerce and Labor 189.
concerning boarding of vessels, and pen-\31 Mar., 1900, ss. 1, 2; 31

alties for violation. ............-..250 Stat., 58.
Master refusing to pay ten dollars in each{2 Aug., 1882, s. 10; 22 Stat.,
case of death atsea...........--..056- 190.

Vessel leaving port before being duly clear-{2 ee 1882, s. 12; 22 Stat.,
ed by collector. ..-.........0.00ee eee 190.
778 APPENDIX.

Chapter Five.—Liability of vessels.
Shipping inflammable material in vessel. ...R.S., s. 4288.
Inserting in bill of lading, etc., clause re-/13 Feb., 1893, ss. 1, 7; 27

lieving 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 penal-{13 Feb., 1893, ss. 4, 7; 27
ties for violation: <o<4c0.0s ccescnveses | Stats., 445.

Refusing to issue bill of lading on demand...13 Feb., 1893, s. 5; 27 Stat.,
446.

Chapter Six.—Log books.
Neglecting to keep up log book in manner
required, or making entry more than
twenty-fours after arrival, etc........... R. S., s. 4292.

Chapter Nine.— Vessels engaged in foreign com-

merce.
Vessel departing without passport......... R. S., s. 4307.
Master failing to deposit ship’s papers with
CONSUL ess og ane Px eRe AHA SESE ESA EY R. S., s. 4310.

Chapter Ten.—Vessel engaged in domestic com-
merce.

Rules for exchange of enrollment and regis-

ter when vessel in another district, and

penalty for violation................... R. S., s. 4323.
(R. S., s. 4325.
Master failing to deliver license at expira-424 ‘Apr. 1906, s. 2; 34 Stat.,
TOM esricsh fs oro Sacer atin uses Rusecerailepinio ease Bes 36.
R. S., s. 4334.

Owner failing to have name of vessel paint-; 26 3 oe 1884, s. 21; 23 Stat.,
ed OM SleMni: 6 egaeiein en qacen wird and v aMte aie as ane
New master failing to report change of mas-

CePaxs h sk tee eRe AEE He eee Re ee R.S., s. 4335.
Master not exhibiting enrollment or license
when required..............-...-.0055 BR. S., s. 4336.

Foreign vessels transporting passengers{17 Feb., 1898, s. 2; 30 Stat.,
between United States POTS: 1 eo ew cas
Foreign vessels carrying passengers be-/30 Apr. -, 1906, s. 2; 34 Stat.,
tween United States and Philippines. . 154.
Vessel departing without having left dupli-
cate manifest of lading; master liable..... R. S., s. 4350.
Master of vessel containing certain goods
failing to deliver up manifest before un-
Mad INS} -CtCiniakcec ety an citon ewsial «ciales 3 R.S., s. 4352.
Vessel proceeding without raanitent and
permit; master liable.................. R. S., s. 4354.
Master of vessel under twenty tons failing
to deliver up manifest.................. RB. S., s. 4356.
Master of vessel failing to exhibit manifest
on arrival; additional penalty if distilled
spirits on board; refusing to answer inter-

pomatories (rule... os ceca n wane gunaves R. S., s. 4360.
Refusing to deliver up permit for merchan-
dise to be transported inland, etc......... R. S., s. 4363.

Fishing vessels, permitted to land at foreign

ports, failing to deliver manifests and

ETNCETOS). stv Gees gre cies a eer oi gastos aac vats RB. S., s. 4364.
Master neglecting to report when vessel puts

into port other than destination......... BR. S., s. 4366.
APPENDIX. 779

Chapter Ten— Vessel engaged in domestic com-

merce—Continued.
Master of foreign vessel bound coastwise

failing to deliver duplicate manifests, etc.;

refusing to swear to verity of manifest,

Cts ene Bae Seba Kuk eens gauche R. S., s. 4367.
Master of foreign vessel bound coastwise

failing to deliver manifest to collector on

arrival; failing to swear to verity of mani-

fest; failing to deliver permit............ R.S., s. 4368.
Vessel entitled to be documented trading ie June, 1886, s. 7; 24 Stat.,

without a license..................... 81.
Making illegal enrollment or license; giving

false information as to vessel to be en-

rolled or licensed............... 0000005 R.S., s. 4373.
Failing or refusing to perform duties pre-

scribed by this chapter................. R.S., s. 4374.
Forging or-altering enrollment, license, etc..R. S., s. 4375.
Obstructing officers.................00005 R. S., s. 4376.

Chapter Eleven.— Vessels engaged in fisheries.
Fisherman deserting or absconding himself
from vesselieqs.s ose's vaed 26-285 eee eee R.S., s. 4392.

Chapter Twelve. —Inspection of steam vessels.
Inspection of sea-going barges; require-)28 May, 1908, ss. 10-13; 35
ments before registry; penalty for viola-} Stat., 428. 7

7 tion; eteis 5 cpcsas den youeee ea eh eee ee ed
R. S., s. 4413.
Pilot, mate, or master, etc., violating regu-;7 June, 1897, s. 5; 30 Stat.,
tions relating to passing of vessels..... 103.
R.S., s. 4416.
Inspector serving without specified qualifi-;3 Mar., 1905, s. 2; 33 Stat.,
Cations sc sae eed ede aes ce SOR tees Ee 1029.
Carry passengers and gunpowder contrary
LO AW oc ao U8 ake ans paces 4 ate n che eeated ae R. S., s. 4424.
Inspector certifying falsely touching steam
VESSELS ons advected eek Hees een es S rer BR. S., s. 4425.
Improperly constructing boilers.......... R.S., s. 4429.

7 Aug., 1882; 22 Stat., 310.
Affixing fraudulent, etc., stamp to boiler/R. S., s. 4430.
DIAC nes ach amon aoe wens aie seen aac 22 Jan., 1894; 28 Stat., 28.
Counterfeiting stamps prescribed for boiler
iron or steel plates; falsely marking iron

or steel plates............0....000 00 cee R. S., s. 4432.
Obstructing safety valve, ete.............. R.S., s. 4437.
R. S., s. 4438.
Employing certain persons who are not li-|25 Jan., 1907; 34 Stat., 864.
censed 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 be [R. S., s. 4446,

BCC case sina ie eee. aes elas oulgye oes 19 Feb., 1907; 34 Stat., 897.
Navigating vessel after notice to make re-
DAI ya oes 6 wast Se ASS be eee bk See R.S., s. 4454.

Chapter Thirteen.— Transportation of passengers
and merchandise.

Navigating vessel with less than required

2 Apr., 1908, s. 1; 35 Stat.,
number of licensed officers and men... ..

RB. S., s. 4463.
55.
780 APPENDIX.

Chapter Thirteen—Transportation of passengers
and merchandise—Continued.
Violating rules governing regattas or ma-{28 Apr., 1908, s. 4; 35 Stat.,
TINE PALACES! a ieic ciecoe tas seen PRN E Me 69.

R.S., s. 4468.
Failing to keep passenger list............ 28 May, 1908, s. 4; 35 Stat.,
425.
Unlawfully carrying cotton orhemp....... R. S., s. 4473.

Rules concerning use of petroleum as fuel es S., s. 4474. 18 Oct., 1888;
and penalties for violation............. 25 Stat., 564.

Shipping or attempting to ship dangerous
articles not duly marked or packed....... R. S., s. 4476.

Failing to provide proper stairways........ RB. S., s. 4484.

Failure to keep sufficient watchmen on ves-
sel to guard against fire and other dan-

BE OLS po ve dap tts Shreiousliovaehniuends Sean edie MTD MRL R. S., s. 4478.
Overcrowding or occupying passenger space
with freight, etc...............-. 0 eae R. S., s. 4485.

unlawfully constructed; manufacturing
or selling, etc., inefficient life-perservers,

R. S., s. 4488. 3 Mar., 1905,

Manufacturing or selling, etc., life-preservers
s. 3; 33 Stat., 1024.

Owner neglecting or refusing to carry life-

boats, rafts, life-preservers, etc.........
Barges carrying passengers failing to have

dire buckets, anew, 6G. 6 4¢enesdhacsee oes 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..................5 R. S., s. 4495.
Customs officer negligently or intentionally

failing to require name of vessel to be

placed on pilot house or wheelhouse..... . R.S., s. 4497.
Persons, etc., owning, etc., steam vessels c S., s. 4499.

1889, s. 2; 25 Stat., 1012.

R. S., ». 4489. 2 Mar.,
11 Apr., 1892; 27 Stat., 16.

failing to comply with terms of chapter;3 Mar., 1905,

OBERIS CI Oiascse ees sacseniess increas ace Reatalrin ators 1025.
Penalty for violating any of the provisions

of chapters twelve and thirteen of this

title, not otherwise specifically provided

TOE second cra Gy okee dieses Rie Snceoberaveuimepelet ogee R. S., s. 4500.

4; 33 Stat.,

_

Chapter Fourteen.—Rules of navigation.
Rules for the prevention of collisions on in-{7 June, 1897, s. 3; 30 Stat.,

land waters, and penalty for violation. . . 102.
Rules to be established by supervising in-{7 June, 1897, s. 2; 30 Stat.,
spectors, and penalty for violation...... 102.

Rules for the prevention of collisions on in-)7 June, 1897, s. 4; 30 Stat.,
land waters, and penalty against vessel} 103.
FOF WIOLAU ONG cidunecisrincredete Gararacnden ieinannerigs

Rules to prevent collisions on the Great{8 Feb., 1895, s. 2; 28 Stat.,

Lakes, and penalties for violation....... 649.
Owners, agents, ctc., failing to report acci-{20 June, 1874, s. 10; 18 Stat.,
dents to collectors. ofcustoms.......... 128.

Owner, etc., failing to report probable loss/20 June, 1874, s. 11; 18 Stat.,
OF Vessel, CLC: era. eis sterg qiemienerine daa nop eee 28.
19 Feb., 1895, s. 3; 28 Stat.,
Navigating vessel without proper signal; 672; 7 June, 1897, s. 5; 30,
WES is pe ccicsiasrisesd Sea eyed gsdedarideesd wana she aphea aA Stat. 103.
Failing to render assistance to vessel in i Sept., 1890, s. 2; 26 Stat.,
GESH MOSS st ccetorieccn sregtacsoni score a cers SOR ES 425.
APPENDIX. 781

4

Chapter Fifteen.—Reciprocal privileges.

Opposing an officer of the United States
in enforcing certain rules concerning|19 June, 1886, s. 17; 24 Stat.,
foreign vessels that have violated pro-; 82.
CLAM ALION s 6.0 cones esi cade acres ge Daya Be

Persons of British North America violating
rules and proclamations of President con-
cerning fishing rights in American waters.3 Mar., 1887; 24 Stat., 475.

TITLE XLYVIIL.
MERCHANT SEAMEN.

Chapter One.—Shipping commissioners.

Unauthorized person acting as shipping

commissioner..............0 0000 ce eee R.S., s. 4504.
Rules concerning indenture of apprentices

and penalties for violation.............. R, S., 6. 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

Te weitiats eheserninn aa tee ee ee eat Ma aes R.S., s. 4518.
Master failing to post copy of shipping a
WOTRRTIONE cos od eee eae BA AAD ED AEM GOR RB. S., s. 4519.

Master shipping seamen without articles. .R. S.,s. 4521.
Shipping commissioner, etc., taking unlaw-
Pulses). wis eres Maid & Mik KS 8 Sa hare R. S., s. 4595.

Chapter Two.—Wages and effects.
21 Dec., 1898, s. 24; 30 Stat.,
Paying seamen advance wages........... 763. :
26 Apr., 1904; 33 Stat., 308.
21 Dec., 1898, s. 24; 30 Stat.,
Demanding, etc., remuneration for provid-; 763.

ing seaman with employment.......... 26 Apr., 1904; 33 Stat., 308.
Falsely claiming to be relative of seaman. .21 Dec., 1898, s. 24; 30 Stat.,
763.
Master failing to take charge and account t
for deceased seaman’s effects............ R.S., s. 4050.

Chapter Three.—Discharge.
Master discharging seaman in manner other
than that provided by law.............. BR. S., s. 4549.
Master failing to deliver account of wages
to discharged seaman or shipping com-

MUSSHONETs a iaag ses Hiren kaa ye ware scans R.S., s. 4550.
Master failing to give discharged seaman
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 com-
missioner.........0.00. 0.000 cece eee ee R. S., s. 4555.
RB. S., s. 4550.
(a Dec., 1898, s. 7; 30 Stat.,
757.

Master failing to apply for surveyors upon
compaint that ship is unseaworthy....
782 APPENDIX.

Chapter Four—Protection and relief—Continued. :

(R.S., s. 4561.
Sending, etc., an American ship to sea met Dec., 1898, s. 11; 30 Stat.,
an unseaworthy condition............. 58.
Master failing to pay charges of inspection,

and wages RELL OD ERSE GERD RAED EBS R. S., s. 4563.
R. S., s. 4564.
Master or owner failing to provide suffi-}21 Dec., 1898, s. 12; 30 Stat.,
cient quantity of‘stores................ 759.
Master failing to provide suitable provisions
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| 56.

OI OS Eves sss scsrsheieg a aac sb er phan ep Bpaer se eer 19 June, 1886, s. 13; 24 Stat.,
82.
Owner or master failing to provide vessel
with medicines, CC... sade neaing seeaes R. S., s. 4570.
Master neglecting to serve out lime juice,
Pe ud cd dda 40h ssc Sw a ste dh do ai ae alae oe sectors R.S., s. 4570.
Master failing to keep on beard and use
proper weights and measures............ R.S., s. 4571.

clothing and room for use of seamen in;21 Dec., 1898, s. 15; 30 Stat.,
cold weather..............-...000-- <\ 759.
Rules concerning list of ship’s crew, and
penalties for violation.................. RiS., 8.4575.
R. S., s. 4576.
Master of foreign-bound vessel failing to}3 Mar., 1897, s. 3; 29 Stat.,
produce person on ship’s list of crew... . 88
Master of United States vessel refusing(R. S., s. 4578.
to receive or transport indigent seaman |26 June, 1884, s. 9; 23 Stat.,
from foreign country to United States... 55.
19 June, 1886, s. 18; 24 Stat.,
83

Owner or master failing to provide warm (a S., s. 4572.

Rules concerning extra payment to sea-(R.S.,s. 4582.
man on discharge in foreign port in case|26 June, 1884, s. 5; 23 Stat.,
of sale of vessel and penalties for viola-; 54.
DON ha eats aaah emcee nnetis haw 21 Dec., 1898, s. 17; 30 Stat.,
759.

Chapter Five.-—Offenses and punishments.
Offenses of seamen or apprentices:

R. S., s. 4596.
Deserting ship......... UMNO a 21 Dec., 1898, s. 19; 30 Stat.,
760.
Refusing to join vessel or proceed to{R.5S., s. 4596.
SCA, Clas nauk wesw bea ye RSE Be 21 Dec., 1898,s. 19; 30 Stat.,
760.
Willfully disobeying any lawful com-/R. S., s. 4596.
mand, etc........ 00.00 eee eee 21 Dec., 1898, s. 19; 30 Stat.,
760.
Continuing to disobey any lawful com-[{R. S., s. 4596.
MAN root ees euuned Sandee weer 21 Dec., 1898, s. 19; 30 Stat.,
760.
R. S., 5. 4596.
Assaulting master or mate........... 21 Dec., 1898, s. 19; 30 Stat.,
760.
R. S., s. 4596.

Damaging vessel or embezzling stores;21 Dec., 1898, s. 19; 30 Stat.,
760.
APPENDIX. 783

Chapter Five—Offenses and punishments—Continued.

R.S., s. 4596.
Smuggling, etc..............-...04. 21 Iec., 1898, s. 19; 30 Stat.,
7€0.

Refusing to do or doing certain acts in
willful breach of duty or by reason of

ATUNKETNESS),. ct ease day ns 4 Gene & komacw mine R. S., s. 4602.
Boarding vessel before arrival............ { RB. S., s. 4606.
31 Mar., 1900, 31 Stat., 58.
Soliciting seaman as lodger.............. R. S., s. 4607.
13 Apr., 1904, 33 Stat., 174.
Master to enforce provision against carry-
ing sheath knives on vessels............. R. S., s. 4608.
Master, etc., inflicting corporal punish-(R. S., s. 4611.
ment that is forbidden by law.......... 21 Dec., 1898, s. 22; 30 Stat.,
761.

Detaining clothing of seaman unlawfully. {18 Feb., 1895, 28 Stat., 667..
\11 Apr., 1904, 33 Stat., 168.

' TITLE ii
THE CENSUS.

Receiving fee, etc., for securing appointment, {3 Mar., 1899, s. 20; 30 Stat.,
ete.,/of another’... sche y cesiee nae caraws ae wes 1020.

Supervisor or other employee refusing or neg-)2 July, 1909, s. 22; 36 Stat.,
lecting to perform duties, false swearing, or} 8.
making false returns, etc................00.

Refusing information to enumerator, etc........ 2 July, 1909, s. 23; 36 Stat., 8.

Officer or agent of manufacturing establishment) 2 July, 1909, s. 24; 26 Stat.,
refusing to give information, or giving false; 9.
information to officer or agent of census.

——- i:

COMMON CARRIERS OF INTERSTATE AND FOREIGN
COMMERCE.

Chapter One.—Regulations of transportations.
Making unreasonable or unjust charge for C June, 1906, s. 1; 34 Stat.,
transportation of passengers or property| 584.
‘ree transportation of passengers forbid- J 29 June, 1906, s. 1; 34 Stat.,
LOM persist ase anidesce Sedioeku nc haslnsucal se alts dduasosicyayto ty 84.
Railroads not to carry products in which 29 June, 1906, s. 1; 34 Stat.,
interested.........00 0.00000 ceca wees | 585.
Railroads to construct switches and to fur-{29 June, 1906, s. 1; 34 Stat.,
nish cars to shippers.................. 5
4 Feb., 1887, s. 2; 24 Stat.,
Making of special rate or giving of rebate| 379.
UMAWE UD 6 sil esas tee a x sista a ee ate vantces 2 Mar., 1889, s. 2; 25 Stat.,
857.
4 Feb., 1887, s. 3; 24 Stat.,
Undue preferences to persons, localities,| 380.
and traffic prohibited................. 2 Mar., 1889, s. 2; 25 Stat.,
857.
4 Feb., 1887, s. 4; 24 Stat.,
Charge for short haul not to be more than| 380.
forlong Naullis:s vu miasnapiieygscas ascedhace 2 Mar., 1889, s. 2; 25 Stat.,
857.
784 APPENDIX.

Chapter One—Regulations of transportations—Continued.
4 Feb., 1887, s. 5; 24 Stat.,
Pooling of freight or earnings with others| 380.

prolibited sincera excuses ade ewumenen 2 Mar., 1889, s. 2; 25 Stat.,
857.

Charge for joint interchangeable mileage(8 Feb., 1895, 28 Stat., 643.

or tickets to be uniform.............. 2 Mar., 1889, s. 2; 25 Stat.,
857.

Willful failure to file and publish schedules{29 June, 1906, s. 2; 34 Stat.,
of rates and fares..............0.0000. 587.
Willful failure to observe schedules of rates)29 June, 1906, s. 2; 34 Stat.,
and fares published until changed ac-; 587.
cording tolaw..............00 ce aeee
Carrier not to engage in interstate com-
merce until schedule of rates and fares|2 Mar., 1889, s. 2; 25 Stat.,
are filed; nor to charge different rates} 857. <
than those in schedule; nor refund any|29 June, 1906, s. 2; 34 Stat.,
portion of rates and fares.............. 587.
4 Feb., 1887, s. 7; 24 Stat.,
Combinations to prevent continuous car-| 382.
riage of freights................2.0005 2 Mar., 1889, s. 2; 25 Stat.,
857.
Punishment for violation of interstate/2 Mar., 1889, s. 2; 25 Stat.,
commerce law, to which no specific pen-
alty is attached......................
Unlawful to offer or give, or to solicit or re-/29 June, 1906, s. 2; 34 Stat.,
ceive rebate, for property transported. .
Carrier receiving or accepting compensa- 29 June, 1906, s. 2; 34 Stat.,
tion as rebate for property transported..\ 588.
2 Mar., 1889, s. 2; 25 Stat.,
False billing, false classification, or false} 858.
weighing of property transported....|19 Feb., 1903, s. 1; 32 Stat.,
847.

Obtaining transportation at less than regu-(2 Mar., 1889, s. 2; 25 Stat..
lar rates by means of false billing,-false} 858.
classification, or false representations. .)19 Feb. ,1903, s. 1; 32 Stat.,

2 Mar., 1889, s. 2; 25 Stat.,

Shipper inducing discrimination in rates...| 858.
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..................5. 587.

Chapter Two.—Interstate Commerce Commission.

Punishment for refusal to testify before{11 Feb., 1893, s. 1; 27 Stat.,
Commission.............000.00e eee 443.

Failure of carrier to obey order of the Com-{29 June, 1906, ss. 4, 5; 34
MISSION 5.13 cunine «oe alps eae vane hee Stat., 589, 591.

Failure of carrier to file annual reports re- {29 June, 1906, s. 7; 34 Stat.,
quired by Commission................ 593.

Failure of carrier to keep accounts and rec-)29 June, 1906, s. 7; 34 Stat.,
ords required by Commission; agent 594.
divulging information................

Willfully making false entries in accounts, ca June, 1906, s. 7; 34 Stats.,
or keeping unauthorized accounts....... 594.

Chapter Three.—Safety appliances on railroad
cars. /
Common carrier using locomotive engine(2 Mar., 1893, s. 1; 27 Stat.,
not equipped with a power driving-wheel, 531.
Drake, Ctesi.ssccciece vw wce we wnned wane eine 1 Apr., 1896; 29 Stat., 85.
APPENDIX. 785

Chapter Three—Safety appliances on railroad

cars—Continued.

-Common carrier hauling, etc., cars used in(2 Mar., 1893, s. 2; 72 Stat.,
moving interstate traffic not equipped; 531.
with automatic couplers..............

Common carrier using car in interstate)2 Mar., 1893, ss. 4, 6; 27
commerce not equipped with proper; Stat., 531.
grab IONS. s20isspaan seen eteeee yamine

Common carrier using cars in interstate) 2 Mar., 1893, ss. 5, 6; 27 Stat.,
traffic not equipped with draw-bars of} 531.
standard height....................4-

Common carrier failing to make monthly)3 Mar., 1901, ss. 1, 2; 31
report to Interstate Commerce Commis-} Stat., 1446.
sion of all accidents..................

Using locomotive not equipped with proper May, 1908, s. 3; 35 Stat.,
ASH PaNh.ccavew ee eka ee Ae PEN Dy aN Ae 476.

Chapter Four.—Care of animals in transit.

Confining live stock longer than twenty-/R.S.,s. 4386.
eight hours without unloading for rest,;29 June, 1906, ss. 1, 2; 34
water, ad T6060... ..404acensveraaeers 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; 428.
him with loss of employment, etc.......

Chapter Sven. Hours of service of employees.
Common carriers requiring employees to)}4 Mar., 1907, ss. 2, 3; 34
remain on duty longer than 16 hours;| Stat., 1416.
train dispatchers and telegraph opera-
tors longer than 9 and 13 hours......... )

TLTGE LIT.
COMBINATIONS IN RESTRAINT OF TRADE.

Making contract or engaging in combination,/2 July, 1890, s. 1; 26 Stat.,
etc., in restraint of trade.................-. 209.

Monopolizing, etc., trade among the several{/2 July, 1890, s. 2; 26 Stat.,
SEALS): Ct osse 5 soso doe desu wie race dua a aun dadon aiaan docile 209.

Making contract in restraint of trade, etc., in 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 goods, |24 July, 1897, s. 34; 30 Stat.,
intended to operate in restraint of trade, in-{ 213.
€TCASE DVICES, CCC... ee ca by ataanaeabs

TITLE LIV.

REGULATIONS OF EXPORTATION, IMPORTATION, AND TRANS-
PORTATION OF ANIMALS, FOODS, AND INSECT PESTS.

Chapter One.—Inspection of animals, meats, and
dairy products for exportation.

Rules concerning inspection, etc., of ani-)30 June, 1906, 34 Stat., 674.
mals intended for exportation, and pen-}4 Mar., 1907, 34 Stat., 1260.
alties for violation..................--

Bribery of inspectors of meats and of ani-{30 June, 1906, 34 Stat., 678.
mals intended for slaughter.......... \4 Mar., 1907, 34 Stat., 1264.

50
786 APPENDIX.

Chapter Two.—Protection against importation
and transportation of infected
animals, meats, and adulter-
ated foods.

30 Aug., 1890, s. 10; 26 Stat.,
Violation of regulations to prevent intro-) 417.
duction of contagious diseases of 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 quaran-{3 Mar., 1905, ss. 2, 6; 33
tined districts..............0.-0.000. Stat., 1264.
Moving live stock from quarantined dis-/3 Mar., 1905, ss. 4, 6; 33
trict contrary to regulations...........!} Stat., 1265.

Violating regulation respecting exporation(29 May, 1884, ss 4, 5; 23
and transportation of live stock from in- Stat., 32.

fected district...............2.00000- 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 adult- a June, 1906, s. 2; 34 Stat.,
erated or misbranded foods or drugs. . 768.
Manufacture of adulterated foods and)30 June, 1906, s. 1; 34 Stat.,
drugs in Territories and District of Col-} 768.
MM Dia nace caints sonia beeen adlawese

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 production,)1 July, 1902, ss. 1-7; 32
inspection, and sale of viruses, serums,; Stat., 728.

Interfering with officer or employee off1 July, 1902, ss. 6, 7; 32
Treasury Department................ Stat., 728.

PLI GE LY,

IMPORTATION OF ADULTERATED TEAS AND IMPORTATION OF
OPIUM BY CHINESE PROHIBITED.

Chapter Two.—Importation 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 opium{23 Feb., 1887, s. 3; 24 Stat.,
into open ports of China............... 409.

buying, selling, or conclealing opium so} 614.

Unlawfully bringing into United States, or)9 Feb., 1909, s. 2; 35 Stat.,
DLOURN bese assetity ncasdiawarg wuanced Bannan shes
APPENDIX. 787

Chapter Three.—Regulation of importation, trans-
portation, and exportation of
falsely stamped merchandise,
and the landing and sale of
sponges.
Stamping the words ‘‘United States Assay’’)21 Feb., 1905, ss. 1, 2; 33
on goods manufactured from gold or sil-| Stat., 732.
ver which enter into Interstate Com- ;

Falsely stamping as to fineness or quality)13 June, 1906, ss. 1, 2, 3, 5;
of metal articles manufactured from; 34 Stat., 260.
gold or silver.............-..2020000-

Stamping the words “‘sterling” or ‘‘coin’’{13 June, 1906, ss. 4, 5; 34
on gold or silver-plated merchandise..\ Stat., 261.

Unlawful landing, delivery, or sale of
SPONGES rexlepreeis oa5 Sigh ea aiels Bae tps hs RI Hedd 20 June, 1906; 34 Stat., 313.

TITLE LVII.

LIGHTS AND BUOYS.

Maintaining light, or other aid to navigation cm June, 1906, s. 3; 34 Stat.,
without permission of Light-House Board. 324.

Failure to maintain lights on bridges over{14 May, 1908, s. 5; 35 Stat.,
navigable waters........... 00.000 .0 00 cee 162.

TITLE LYIitlt.

PROTECTION OF FUR SEALS.

R. S., s. 1956.
Killing of fur seals within the limits of Alaska,|2 Mar., 1889, s. 3; 25 Stat.,
including Bering Sea..................... 1009.
3 Mar., 1899, s. 173; 30 Stat.,
1279.
Killing of fur seals on St. Paul and St. George [R. S., ss. 1960, 1961.
VSL AI Ste i5 2 osc cascs Sanco Ghd ead Ga ase eens 3 Mar., 1899, ss. 177, 178; 30
Stat., 1280.
Killing female seals, or seals less than one year /R. S., s. 1961.
ONS sccaacerestoan cerns skeen aisle quater catiges in aaviaes tare tapas 3 Mar., 1899, ». 178; 30 Stat.,
1280.

Killing seals on St. Paul and St. George islands,
without authority of lessees................ R. S., ss. 1861, 1967.
Citizens of United States equipping vessel for)29 Dec., 1897, ss. 1, 2, 3; 30
killing, or killing fur seals in certain parts of} Stat., 226.
Pacific Ocean

LITLE LX.

LABOR.

Chapter Two,—Hours of labor.

Requiring employees on Government work)1 Aug., 1892, s. 2; 27 Stat.,
to labor more than eight hours per day,+ 340.
788

APPENDIX.

TITLE Lx.

IMMIGRATION.

Chapter One.—Regulation of immigration.

Importation of women for purpose of pros- .
titution, or for other immoral purpose;|20 Feb., 1907, s. 3; 34 Stat.,
harboring for immoral purpose alien} 899.
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 ao Feb., 1907, ss. 4, 5; 34

he nt Saker woes sms ah ose RoeeS 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 passengers to be furnished im-{20 Feb., 1907, ss. 12, 15; 34
migration officers by master of vessel. Stat., 901.

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... cs055-.e0020n0e 00% 904.

Chapter Two.—Exclusion of Chinese persons.

Master of vessel refusing or neglecting tof5 July, 1884, s. 8; 23 Stat.,
deliver list of Chinese persons on board| 117.
13 Sept., 1888, ss. 9, 10; 25
Master of vessel unlawfully bringing into] Stat., 478.

the United States Chinese persons...... 29 Apr., 1902, s. 1; 32 Stat.,
_ 176.

Bringing into United States by land Chi-{5 July, 1884, s. 11; 23 Stat.,
HGSE HOGG. co casa nner eohe Ad pew eawe 117.

13 Sept., 1888, s. 11; 25 Stat.,
Forgery of certificate issued to Chinese} 479.
person; false personation.............. 5 May, 1892, s. 8; 27 Stat.,
26.

29 Apr., 1902; 32 Stat., 176.
Violation of other provisions of Chinese
exclusion laws..............000000e0es 5 July, 1884, s. 16; 23 Stat.,
118.

Chapter Three.—The cooley trade.

Building, equipping, etc., vessel for the
cooley trade........... ccc cece eee ens R. S., s. 2160.

Receiving or transporting coolies.......... R.S., s. 2161.

Transporting, etc., subject of China, Japan {3 Mar., 1875, s. 2; 18 Stat.,
etc., without consent WAR RGR ESSA ESOS 477.

Contracting or attempting to contract tof/3 Mar., 1875, s. 4; 18 Stat.,
supply cooley labor..................
APPENDIX. 789

TITLE LXII.
NATURALIZATION AND EXPATRIATION.

Chapter One.—Naturalization.
Clerk of court of other person illegally issu- eo June, 1906, s. 18; 34 Stat.,
ing certificate of naturalization........ 602.
Clerk or other officer of court neglecting to) 29 June, 1906, s. 20; 34 Stat.,
render accounts of money received in} 602.

Clerk of court or other officer i issuing false {29 June, 1906, s. 22; 34 Stat.,
certificate or acknowledgments......... 603.

Fraudulently obtaining naturalization... .29 June, 1906, s. 23; 34 Stat.,
03.

TITLE LXIV.
CIVIL RIGHTS.

Persons not to be discriminated against in inns,)1 Mar., 1875, ss. 1, 2; 18
public conveyances, theatres, etc., on ac-; Stat., 336.
count of race or color; penalty..............

District attorneys, marshals, etc., failing to en-{1 Mar., 1875, s. 3; 18 Stat.,
force provisions of civil rights act Sinn ee wigew ee 336.

Persons not to be excluded as jurors on account{1 Mar., 1875, s. 4; 18 Stat.,
ofraceorcolor............0.0 20: e eee eee

Marshal or deputy refusing to execute a
issued under provisions of this Title......... R.S., s. 5517.

TITLE LAVI,
THE SEAT OF GOVERNMENT.

Chapter One.—Public buildings, parks, and
wharves.
Tapping, without authority, pipes laid by
United States.............. 0.0. c eee R. S., s. 1803.
Willfully breaking, etc., water pipes in Dis-
trict of Columbia.................0005 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 Capitolf{1 July, 1882, ss. 1-7; 22
grounds, and penalties for violation... .. Stat., 126.

TITLE LXVII.
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. Al.

Breaking submarine cable by culpable 29 Feb., 1888, s. 2; 25 Stat.,
NCP genes o's as var sa ae es Ame RN ee Al.

Rules to be observed by master of vessel) 29 Feb., 1888, s. 4; 25 Stat.,
laying cable, and other vessels in proxi-} 41.
mity, and penalties for violation......
790 APPENDIX.

Chapter Two—Submarine cables—Continued.
Master of fishing vessel failing to keep nets,)29 Feb., 1888, s. 5; 25 Stat.,
etc., more than a nautical mile from ves- :
sel laying cable..................000.
Refusing to produce certain papers neces-)29 Feb., 1888, s. 7; 25-Stat.,
sary for the preparation of specified; 42.
statements).....c ici caekoesevas eed seme y
Master liable in case of certain violations. ee 1888, s. 9; 25 Stat.,
2),

TITLE LAVIII.
BANKRUPTCY.

Chapter Four.—Courts and procedure therein.
Offenses against bankruptcy laws, and/{1 July, 1898, s. 29; 30 Stat.,
penalties for violation................ 554.

TITLE LXIxX.
INSURRECTION.

Trading in insurrectionary States, or certain
other places, without a license, etc............ R. S., s. 5306.
Trading in captured or abandoned property..... R.S., s. 5313.

TITLE LXXII.
PUBLIC PRINTING.

Chapter One.—Public Printer, duties, etc.
Public Printer colluding, etc., to defraud)R. S., s. 3784.
United States........... 0.0.0. e eee 12 Jan., 1895, s. 33; 28 Stat.,
605.
Public Printer or other employee having)R. S., s. 3765.
interest in contracts for paper or other}12 Jan., 1895, s. 34; 28 Stat.,
material for public printing............ ) 605.

TITLE LXXIII.
HOMES FOR VETERANS.

Chapter Two.—The National Home for Disabled
Volunteer Soldiers.
Trespassing upon, or violating rule for the)22 Mar., 1906, ss. 2, 4; 34
Government of Battle Mountain Re-} Stat., 83.
serve, South Dakota.................

LITLE LARITY «
PENAL AND REFORMATORY INSTITUTIONS.

Chapter One.—Custody and transportation of
Ba prisoners.
Hiring out United States convicts........ 22 Feb., 1887, ss. 1, 2; 24
Stat., 411.
APPENDIX. 791

Chapter Three.—Reform School for Boys.
Enticing away or harboring escaped in-{3 May, 1876, s. 11; 19 Stat.,
mates of Reform School for Boys....... 51.

FITGE LAAY.
HOSPITALS, ASYLUMS, AND CEMETERIES.

Chapter One.—The Government Hospital for the
Insane.
Making false affidavit as to insanity of per-{27 Apr., 1904, s. 6; 33 Stat.,
son, or physician making false certificate| 318.

Chapter Three.—National cemeteries.
Defacing national cemetery by destroying,
mutilating, etc., any monument, grave-
stone, etc., or breaking or injuring any
tree, shrub; eteii: scsi vcsweesraawnead BR. S., s. 4881.

TITLE LXXVI1.

NATIONAL MILITARY PARKS.
19 Aug., 1890, s. 10; 26 Stat.,
335.

27 Dec., 1894, s. 7; 28 Stat.,
598.

Defacing National Military Park—Injuring|11 Feb., 1895, s. 7; 28 Stat.,
monument—Injuring trees and shrubs, or, 652.

fence or inclosure...............00ee0 eee 3 Mar., 1897, s. 1; 29 Stat.,
621

21 Feb., 1899, s. 7; 30 Stat.,
843

Hunting or trapping on National Military Park .3 Mar., 1897, s. 2; 29 Stat.,
621.

Unlawfully refusing to give up possession of {3 Mar., 1897, s. 4; 29 Stat.,
land in park leased for other purposes....... 621.

TITLE LXXVII.

NATIONAL PARKS.

servation of natural objects in Yellowstone} 73.
Park, and penalties for violation............
Laws of Wyoming made applicable to Yellow-}7 May, 1894, s. 5; 28 Stat.,
stone Park in certain cases not provided for} 73.
in United States laws............0..00 0 eee
Unlawful settlement or residence, etc., in Crater {22 May, 1902, s. 3; 32 Stat.,

Rules concerning hunting and fishing, and ne May, 1894, s. 4; 28 Stat.,

Take: Rare aise ves ee Guan inte’, verne x pene eaniory 203.
Trespassing on Wind Cave National Park..... 9 Jan., 1903, s. 6; 32 Stat.,
766.
Molesting or destroying buildings, relics, orf29 June, 1906, ss. 3, 4; 34
ruins in Mesa Verde National Park......... Stat., 617.

Trespassing upon or injuring buildings or/21 am 1904, s. 18; 33 Stat.,
springs in Platt National Park............. 220.

.
INDEX

[Explanation: The first figures indicate the page. S. means section.
Thus 41 S. 13c means page 41, Section 13c.

Full Penal Code with appendix containing every criminal statute, or
information as to where it can be found begins on p. 605.]
ABATEMENT, plea of 61 S. 13c; must be speedily filed, 61 S. 13d.
ABORTION, see obscene; also 457.
ABSTRACTION, see national banks.
ACCOMPLICE, 109 S. 42b; accessories, etc. 536.
ACCESSORIES, see accomplice; also 536.
ACKNOWLEDGMENT, having in possession false, etc. 295.

ADMISSIBILITY DOCUMENTARY EVIDENCE, illegally secured, 74
S. 21; recovered how, 76 S. 21a; 106 S. 42.

ADVERTISEMENT, paid editorial, marked, 158 S. 53d; imitation of any
U. S. security 215 S. 88; ads. etc. 216; like coins, etc. 221.

ADULTERY, 459.

AGENTS, of government, persons interested not to act as, 318.
AIDING AND ABETTING, see national banks; see also 535.
ALASKA, 110.

ALIENS, 107; naturalization certificate, etc., forgery of, 336; 337; using false
certificate, etc. 339.

AMENDMENTS TO CONSTITUTION. 37 S. 2; 38; 39; 41 S. 7; amendment
6, what it means 46 S. 8; amendment 5 as to indictment 56 S. 13; con-
fessions, 70 S. 20; evidence illegally secured 74-77; production of docu-
ments, 77 S. 21b.

ANIMAL, bureau of industry, employees of, interfering with, 330; wild, cer-
tain denied importation, 388; other provisions as to wild animals, etc.
389-391.

ANTI-PASS LAW, 393.

APPEAL, 111 S. 42f; see also writ of error.

APPENDIX, to criminal code and law 757.

ARGUMENT, district attorney improper, 78 S. 22; 80 S. 22a.

ARREST, of citizen, only, when, 63 S. 14a; see amendments to constitution.

ARRAIGNMENT, 64 S. 14c.
794 INDEX.

ARSENAL, arson of, 436.

ARMS, or stores, embezzlement, etc. of, 305; sale of prohibited in Pacific
islands.

ARMY AND NAVY, 110; enticing desertions, etc. in, 318; foreign commission
or service, 353; troops, etc. at elections, 377; officers interfering with
elections, 378; arson of arsenal, etc., 436.

ARSON, murder, etc., mail intended to incite, 157; 435; 436.

ASSAULT, of officer, 239; with intent to commit murder, manslaughter,
rape, robbery, etc., 432; simple, etc. 438.

ASSASSINATION, mail intended to incite, 157.
ASSIGNMENT OF ERRORS, 110 S. 42d.

ATTORNEY, district, improper argument, 78 S. 22; 80 S. 22a; in grand jury
room, 83 S. 23; no private prosecutor, 105 S. 41.

BAIL, excessive, constitutional provision, 39 S. 4; preliminary 62 S. 14;
64 S. 15; 65 S. 15a; after affirmance, 99 S. 36; discretion and right, when,
100 S. 36; procuring false bail, etc. 238 S. 107.

BANKRUPT ACT, immunities under, 42 S. 7a; act itself, 499; offenses under,
500; decisions, 501-506; failure to pay over money, 506.

BANKS, see national banks.

BANK NOTES, unsigned, 204 S. 78a; forging and counterfeiting, 209; state
bank and other securities, 111 S. 83; mutilating, 215; imitating, advertise-
ments, etc. 215.

BILL OF PARTICULARS, 112 S. 42g.

BIRDS, importation of prohibited, 388; migratory, etc. 388; 390; statute,
decisions, and marking packages, 391; penalty, etc., 391.

BODY, of offender, 535.

BONDS, 64 S. 15; 65 S. 15a; actions on, 64 S. 15; 99-100.

BREAKING INTO POSTOFFICE, 142 S. 45; see postal offenses.

BRIBERY, 254 S. 120; judge or judicial officer, juror, master, referee, receiver,
appraiser, etc. 255; indictment 256; of witness, 256 S. 124; members of
congress, etc. 256; 274-275; 276; 278; U. S. officer accepting 278 S. 160;
allegations in indictment and cases, 282; of U. S. officer, ete. 315.

BULL-FIGHTS, 461.

CARNAL KNOWLEDGE, female under sixteen, 433; 434.
CANCELLATON, false returns as to, 185 S. 64.

CERTIFICATE, making false, 269 S. 148; 270 S. 149; of naturalization, etc.
337-339.

CHALLENGES, 66 S. 16.
INDEX. 795

CHARACTER, good, etc. 88 S. 26; 89 S. 26a; 90.

CHARGE, of court, see courts, also 92-93.

CHECKS, see national banks.

CITIZENSHIP, certificate of, etc. 337-339.

CIVIL RIGHTS, conspiracy to injure, etc. 365; voting, labor, etc. 365-378;
right to inform, 374; illustrative cases, 374-376; color of state law, 376;
conspiracy to prevent, etc. 376; troops at election, etc. Intimidation,
etc. 377; peonage, 408-411.

CIVIL SERVICE, forgery of examination papers, etc. 291.

CLAIMS, false, etc. 299; using papers, etc. relating to, 317; against United
States, no officer to be interested in, 291.

COINS, resemblance, etc. ads., counterfeiting, minor, 221-223; see coinage.
COCA LEAVES, 397.
COHABITAION, unlawful 458; 459.

CONTRIBUTIONS, political, not to be solicited or received, 281; see also
political; see also corporations.

CONTRACTS, with U. S., no interested person to act as U. S. agent in, 318.
Paying more than same calls for 267.

COLLECTOR, of customs, to detain vessel, when, 362; see customs; see vessel.
COMPROMISE, I. R. L. D. violation, 465.

CONFESSIONS, 70 S. 20; fifth amendment, 70 S. 20; warning unnecessary
74 S. 20a; admissibility, question for court, 74 S. 20a.

COMMENTS, improper, 78 S. 22; by court 86 S. 24a; not to cross examine 86
S. 24a; instructions of court on; 91.

COMMON LAW, jury, 45 S. 8; see also jury.

COMMISSIONERS, U. S. 50 S. 11; not a court; 50 S. 11; contempt of, how
punished, 51 S. 11.

COMBINATIONS, illegal, 123-125; see interstate commerce; see Sherman
Law.

COERCING VERDICT, 126.

CONTINUANCE, 115 S. 42).

COURTS, Federal, 49 S. 10; contempts of, 51 S. 10a; 51 S. 11; comments, etc.
by; 86 S. 24a; instructions of, 91 S. 27; 92-93; opinion and exceptions to,
92-94 marshal, 110 S. 42c.

CONTEMPTS, of U. S. commissioners, 51 S. 11; of courts, 51S. 11a; reviewed
how, 51 S. 11a; full, 51 S. 11; definition, 54 S. 11b; pendente lite, 55 S. 11c;

failure to pay over money in bankruptcy order, 506. See injunctions.

CONSTITUTION, U. S. 37S. 1, 41S. 7.
796 INDEX.

CONSTITUTIONAL GUARANTIES, 38 S. 4; 74-77; 103-104.
CORRUPTION, of blood, not worked by conviction, 527.

COINAGE, 221-223-225; removal of metal from and substituting inferior,
219 S. 92; resemblance and similitude, 220 S. 92a; ads like coins, 221;
minor coins, 221 S. 93; making or uttering, 222; making, etc. devices for
minor coins, 222 S. 95; other statutes relating to coinage, 223 S. 96; dies
and hubs and molds, etc. 224; counterfeits forfeited, 224 S. 97; search
warrant, 225 S. 98.

CONGRESS, members accepting bribes, etc. 236; 272; offering bribe to, 272
S. 154; bribe for contracts, etc. 273; when is one member of, 274; with
reference to U. S. contracts, 276-278.

CONSPIRACY, to intimidate party, witness or juror, etc. 250 S. 113; to
commit offense, etc. 306; cases, etc. under, 308-315; seditious, 348;
to injure civil rights, etc. 365.

CONTRIBUTIONS, political, 281; immunity from, 281; 282; publicity of,
537; see corporations; see political.

CORPORATIONS, indictment of, 112 S. 42h; individual may aid and abet,
113; violation trust statute, 123; defunct bills of, 215; must not contribute
money, etc., 343; see interstate commerce; see political; see contributions.

COUNTERFEITING, money orders, 191 S. 70; postage stamps, 194; U. S.
securities, etc. 207 S. 80; bank notes, etc., 209 S. 81; description in indict-
ment, 214; bills of expired corporations, 214 S. 86; mutilating national
bank note, 215; imitating, advertisement, etc., bank notes, etc. 215;
gold or silver coins or bars, 218; resemblance and similitude, 219; weather
reports, 284; weather forecasts, 329; see coins and coinage; see security.

CONFEDERATE MONEY, 210 S. 82.

CONSOLIDATION OF INDICTMENTS, etc., 67 S. 16a.

CONSULAR OFFICER, false certificate by, 336.

COTTON, future contracts, 305.

CRIMES, infamous, 269 S. 5 and S. 5a; trial of, where and how, 39 S. 4;
see postal crimes.

CRIMINAL CASES, governed by federal forms only, 47 S. 9.

CRIMINAL CODE, and statutes complete, 605; index to it, 745; appendix
containing all criminal laws, 757.

CREW, maltreatment of, 442; see vessel; muting of, etc. 544-545.

CROP REPORTS, information, etc. concerning, 283-284.

CURRENT MONEY, 222.

CUSTOMS, certificate of entry, forgery of, 330; invoices, etc., concealment or
destruction of, 330; admitting merchandise for less, etc. 333; securing
entry by false samples, etc. 335; false certificate of consular officer, 336;

collector of customs to detain vessel, when, 362; see smuggling.

CUSTODY, right to protection of one in, 374.
INDEX. 797

DEATH, punishment of, how, 527; body, disposal of, 535.
DEEDS, forgery of, 291.
DELAYING MAIL, 139.

DEFENDANT'S WITNESSES, indigent 46 S. 8; failure to offer evidence, 79.
See witnesses.

DIES, hubs, etc., counterfeiting, 224 S. 96a; see counterfeiting.
DIRECTORS, corporation, personally responsible, 123.

DISTRICT ATTORNEY, improper remarks, comment, etc. 78-80. In grand
jury room 83-S. 23; no private prosecutor 205 S. 41; see attorney.

DISTRICT COURTS, 49 S. 10.
DISCOVERIES, by pleading, confession, etc. 70 S. 20.
DISQUALIFICATION, of judge, 117 S. 42l.

DOCUMENTARY EVIDENCE, illegally secured, 74 S. 21; recovery, 76
S. 21a; production of 77 S. 21b.

DUPLICITY, 69 S. 19; 136 S. 47d; 492.
DUNS, 163.

DYNAMITE, not to be carried, etc. 379; 380; see explosives; see interstate
commerce.

EDITORIAL, paid, to be marked ad, 158 S. 53d.

ELECTION, Indiana case, 369; right to vote 365-372, troops and soldiers at,
etc. 377.

EMPLOYEE, Bureau Animal Industry, interference with, 330; see U. S.
officer. :

EMBEZZLEMENT, postal funds, 195-S. 72; aplies to rural carriers, 199 S. 73;
custodians public funds failing to safely keep, to deposit, to account for,
264-265; evidence of, 265; receiving deposit from disbursing officer, 266;
by Internal Revenue Officer et al., 266 S. 140; to pay larger amount than
contracted for, 267; U. S. court officer failing to deposit, 267; of arms or
stores, 305; of U. S. property, 321; see national banks.

ENTICING, desertions, 318; workmen, 319.
ERROR, assignment, 110; writ, 110; not assigned, 114 S. 42i; see writ of error.

ESCAPE, prisoner, 252; applies to state jailor, 252 S. 115a; rescuing, etc. 252
S. 116; 253 S. 119; see prisoner.

EVIDENCE, before grand jury, 60 S. 13c; confessions, 70 S. 20; 74 S. 20a;
documentary, illegally secured, 74 S. 21; recovery of, 76 S. 21a; production
of documents, 77 S. 21b; of other offense, 90; former conviction of witness,
106 S. 42; of accomplice, 109; handwriting, 128 S. 42s.

EXTRADITION, 39 S. 4; 115 S. 42k; procedure and cases, 115-116; 443.
798 INDEX.

EXTORTION, by internal revenue informers, etc. 254; generally 259; by any
officer, 260; receipting for larger sums than paid, 262; disbursing officer
converting, 263; failure to safely keep money, 263-264; failure to render
account and to deposit, 264—265; prima facie evidence, etc. 265; banker
receiving deposit, etc., 266; see embezzlement.

EXCEPTIONS, to charge, 92 S. 27a; 114 S. 42i.

EXPLOSIVES, not to be carried, etc. 379-381; marking packages, etc. 381;
punishment of person, 382; prohibited in Pacific islands, 453.

FAILURE, of defendant to offer evidence, 79.

FALSE RETURNS, postal, to increase pay of P. M. 185 S. 64; false bail 238;
falsely certifying, etc. as to record, 269 S. 148; other false certificates,
270 S. 149; papers, acknowledgments, etc. 287-295.

FALSE OATH, in naturalization, 341; must be material, 342.

FALSELY, pretending to be U. S. officer, 296.

FALSE ENTRIES, see national banks.

FALSE CLAIMS, etc., presenting or making, 299.

FALSE DEMAND, power of attorney, etc., 299.

FEES, witness or juror, no trading in, 269 S. 147; illegal taking of, 270 S.
150-151.

FEDERAL PRACTICE, forms, methods, 46 S. 9.

FEDERAL TERRITORY, defined, 421.

FEDERAL JURISDICTION, extensive, etc. 528.

FELONY, misprision of, 254 S. 119; felonies and misdemeanors, 536.

FINES, excessive, constitutional proviso, 39 S. 4; remission of, abated by
death, etc. 99 S. 35 and 35a.

FILTHY, 150.

FILMS, prize fight, 157 S. 53c.

FIRES, failing to extinguish, setting, etc. 327.

FIGHTS, see bull and prize.

FORMER CONVICTION, of witness, 106 S. 42.

FORCIBLE, meaning of, 134.

FORGERY, money orders, 191 S. 70; obligations, securities, etc. 204-207,
signature of judge, records, etc. 246 S. 111; letters patent, 286; bond, bid,
public record, etc. 287; deeds, powers of attorney, etc. 291; papers, ete.
in possession, 295; acknowledgments, 295; customs certificate, 330;
naturalization certificate, 336 and 337.

FORTIFICATIONS, injuries, etc. trespassing on, 319.
FORNICATION, 460.
INDEX. 799

FOREIGN GOVERNMENTS, criminal correspondence with, 348.

FOOD AND DRUGS, act of 1906, 507; criminal sections, 507; amendment
1913, 508; criminal practice under, 508 decisions 509-513; misbrander
under 1912 act, 513; opium 514-516; see also opium.

FORMS OF INDICTMENT, embezzlement, 548; vessels, misconduct, etc.
549; conspiracy to violate lottery statute, 551; conspiracy civil rights,
552; peonage, 553, 554; polygamy, 555; illegal retail liquor dealer, 555;
oleomargarine, 555; to plunder vessel, 557; false accounts, 557; to influence
official action, 559; larceny of U. S. property, 559; naturalization affidavit,
560; subornation of perjury, 560; false oath, naturalization, 562; murder
on high seas, 562; falsely certifying checks, 563; bank embezzlement,
564; pretending to be U. S. officer, 565; general beginning and ending, 565;
conspiracy against U. S. 566; mailing obscene matter, 566; breaking P. O.
567; fraudulent use mail 567; false returns to increase compensation of
P. M. 569; perjury 569; perjury, 571; counterfeiting national bank,
572; attempting and passing counterfeit notes, 573; counterfeiting coins,
573; counterfeiting coins, 574; receipting for larger sums than paid, 574;
peonage, 575; under meat inspection laid, 580; harboring prostitutes, 582;
violation quarantine act, 584; fraudulent use mail, 588; conspiracy to
violate white Slave act, 592; white slave violation, 592.

OF WRIT OF ERROR, complete, 600.

FRAUDULENT USE OF MAILS, 164-176; see postal crimes; civil statute,
174 S. 56; assuming fictitious address, 175 S. 57.

FUNDS, public, offenses relating to deposit of, embezzlements of, 262-269;
loan from court officer, etc. 268 S. 143.

FUTURES, cotton, 395.

GOOD CHARACTER, 88-89; charge on, 90 S. 26c.

GOVERNMENT, our system of, 364.

GRAND JURY, number, drawing; returning bill, etc. 56 S. 13; defendant
before 59 S. 13a; evidence before, 60 S. 13c; district attorney in, 83 S. 23;
improper person in room, 205 S. 40.

GUARANTIES, constitutional, 38 S. 4; 45 S. 8.

HARD LABOR, omission of words, 536; see also felony.

HABEAS CORPUS, scope, practical, 102 S. 38-38a.

HEARING, upon removal, 62 S. 14; preliminary, 62 S. 14.

HIGH SEAS, defined, 454.

IDENTITY OF OFFICER, 41 S. 6a.

IMMUNITY, 42S. 7; 24S. 7a; 103-104; anti-trust acts S. 39; from political
solicitation.

IMPEACHMENT, of verdict by juror; 66; 67.

IMPROPER, person grand jury room, 105.

IMMIGRATION ACT, cases under, etc. 107-109.

IMPRISONMENT, and where, 537; parole, 537; see pardon and president.
800 INDEX.

INFAMOUS CRIMES, 39 S. 5 and 5a.
“INFORMATION AND BELIEP’’, 63 S. 14a.
INFORMATION, 40 S. 5a; 61 S. 13e; must show probable cause, 61 S. 13e.

INDICTMENT, copy of, 46 S. 8; presentment of, constitutional proviso,
39 S. 4; prosecutions begun by, 56 S. 12; no person held unless, etc. 56 S.
13; method of drawing jurors to find, venire, return of, No. on jury, etc.
full, 56 S. 13; 67 S. 17; copy of, furnished when. 60 S. 13b; evidence
upon which found, 60 S. 13c; motion to quash, 61 S. 130; inquiry into
validity upon removal, 62 S. 14; 63 S. 14b; consolidation of, 67 S. 16a;
68 S. 18; return of, 67 S. 17; endorsements on, 68 S. 17a; federal statutes
controls, 68 S. 17; different persons in different counts, 68 S. 18; duplicity,
69 S. 19, see also duplicity; of corporation, 112 S. 42h; elements, 157 S. 53a;
postal fraud, 169; see forms.

INDEX, to criminal code, 745.

INTIMIDATION, of witness, juror, etc. 247; illustrative cases, 350; con-
spiracy to, party, witness, etc. 250S.13. see Conspiracy; see Civil Rights,

INVOLUNTARY SERVITUDE, 419.
INCEST, 460.

INDIAN LANDS AND TIMBER, depredations on, 325.

INTERSTATE COMMERCE, explosives in, 379-381; marking of packages,
381; punishment of person, 382; lottery tickets, 382; intoxicating liquors,
385; 386-387; importation of wild animals forbidden, 388; birds, etc.
389-391; obscene matter, 392; anti-pass law 392; theft of, 394; regulation
of, 404; see Sherman Law.

INTOXICATING LIQUORS, 385; see liquors; sale of prohibited in Pacific
islands, 453; see internal revenue.

INSTRUCTIONS, of court, 91 S. 27; 92-94.

INTERNAL REVENUE, extortion by informers, 254 S. 118; decisions as to
constitutionality, 464; compromise, 465; pay tax first, 466; partnerships,
467; exhibit stamp, 467; tax law, 468; indictment, 468; C. O. D. 469;
see also interstate commerce; delivery, 470; cases, 470; proof of license,
472; distillery law, 472; breaking locks, etc. 473; signs, etc. 473; conceal-
ment, etc. 473; books, 474; stamps crased, 475; re-use and refilling,
476-477; removing, etc. under any other than trade name, 477; oleomar-
garine, 478; cases, oleo, and indictment, 478-482.

JEOPARDY, 40 S. 6; Identity of offense necessary, 41 S. 6a; constitutional
proviso, 39 S. 4.

JUDICIAL CODE, 49 S. 10.
JUDICIAL POWER, vested where, 38 S. 2.

JUDGE, disqualification of, 117 S. 42-L; forgery of signature, etc. 246 S. 111;
bribery of, 255.

JURISDICTION, state and federal, exclusive, etc. 528-533; see also state
courts.
INDEX. 801

JUROR, intimidation or corruption of, 247: bribe of, 255; trading i
fees of, 269 S. 147. oe si

JURY, must be common law, twelve men, 45 S. 8; 39 S. 4; challenges, 66 S. 16;
discharge 66 S. 16; impeachment of verdict by, 67 S. 16; 24; care of, etc.
87 S. 25; 87 S. 25a; attempt to influence, 251 S. 114.

KIDNAPPING, 417; bringing into U. S., 420.

KNOWLEDGE, allegation of, in forging and counterfeiting, etc. 213.
LABOR, right to, 369; importing contract labor, 520.

LANDS, public, depredations, etc. 323; Indian reservations, etc. 325.
LAND SCHEMES, 182 S. 60.

LAWS, state, may prosecute under, 437; 132.

LARCENY, 436; see theft.

LETTER, threatening, 167; see obscene.

LIBEL, not federal offense, 438.

LIQUORS, interstate shipment of, 385; delivery of, to bona fide owner, 385;
carrier not to collect price, 386; marked how 387; see intoxicating, and
internal revenue.

LIMITATIONS, 121 S. 420.

LOTTERY, etc., 176 S. 58; 182; lottery tickets, 383.
MAIL CARRIER, assaulting or robbing, 134-135.
MAIL CAR, or box, entering or robbing, 134-135.

MAIL, on train, presumption, 138 S. 48a; delaying or interfering with, 139;
employee detaining, etc. 140 S. 51; carrying illegally, 201 S. 75a.

MAIMING, 435.

MANSLAUGHTER, 429; 430; punishment, 431; assault with intent to com-
mit, 432.

MARRIAGE, failure to record certificate of, 461; see polygamy.

MERCHANDISE, entering less than legal duty, 333; false samples, etc.
duty, 335; false certificate of by consular officer, 336.

MINOR COINS, 221.

MILLER CASE, 171.

MISAPPLICATION, see national banks.
MISAPPROPRIATION, postal funds, 195 S. 72.

MISPRISION, of felony, 254 S. 119; of treason, 347.
51
802 INDEX.

MILITARY, enticing, etc. desertions in, 318; or workmen on, 319; injuring or
trespassing on fortifications, etc. 319; unlawfully entering, 320; expedi-
tion against people or place with U. S. 357; enforcement of laws, 360.

MISDEMEANORS, petty, may prosecute under state laws, when, 438; 536.

MONEY, confederate, 210 S. 582; counterfeiting, forging, etc. of U. S. 204-212;
no note less than one dollar to be issued, etc. 217; minor coins, 221 S. 93;
current, etc., minor coins, 221-223.

MONEY ORDERS, counterfeiting, issuing with receiving money, etc. 191
S. 70.

MOLDS, counterfeit, 224 S. 96a.
MORAL TURPITUDE, defined, 208.

MURDER, 426; definition, malice, decisions, 427; verdict, 429; punishment,
441; assault with intent to commit, 319; qualified verdict in, 535.

MUTINY, 444-445.

NATIONAL BANKS, Not contribute for political purposes, 343; formation of,
etc. 483; federal reserve, 484; examiner, 484; aiding and abetting, 485;
falsely certifying checks, 485; wilfully 487; acting by others, 488; Heinze
case, 488; embezzlements, etc. 489; misapplication, etc. 490-493; false
entries, 489-493; abstraction, 489-493; duplicity; admission of books,
etc. 496; other cases, 496.

NATURALIZATION, certificate, forgery etc. of, 336; 337; false personation,
in, 337; using false certificate of, etc. 339; also 340-343; cancellation of,
343.

NAVY, 101; enticing desertions in, 318.

NEUTRALITY, 351; President’s power to enforce, 352; accepting foreign
commission or enlisting in foreign service, 353; arming vessel, etc. at
peace with U. S. 354; augmenting force of foreign vessel; military expedi-
tion against people at peace with U. S. 357; compelling vessel to depart,
361; armed vessel to give bond for clearance, 361; vessel to be detained
by collector, when, 362.

NEW TRIAL, 120 S. 42n.

NITROGLYCERINE, carriage of, 381.

NOLO CONTENDERE, 148 S. 42m.

NOT GUILTY, plea of, 153.

NOTES, less than one dollar not to be issued, 217 S. 90.

OBLIGATION, U. S. security, etc. what is, 202-591; cases under, 204; posses-
sion of, 204 S. 78a; similitude, 204; cases and forgery, 207; forging or
counterfeiting, 207 S. 80; imitating, etc. 214-216.

OBSCENE, matter, 148 S. 53; aiding in trading in obscene literature, 268 S.
145; in interstate commerce, 392; statute decisions, 392; in territories, 457.

OBSTRUCTING, U. S. mail, 136 S. 48; process, etc. 239.
OFFENSE, another, 90.
INDEX. 803

OFFICE, persons disqualified from holding, 378.

OFFICER, assaulting, etc. 239; in charge of records destroying, etc. 245 S. 110;
intimidation or corruption of, 247; see intimidation; bribery of, 255;
who is, 256; embezzlements in various forms by, 264-267; paying more
than contract, 267; U. S. court failing to deposit, 267; failure to make
return or report, 268 S. 144; aiding trading in obscene matter, 268 S. 145;
no trading in public funds, no purchase of witness fees, etc. 269; false
certificates by, 269-270; steamboat inspector receiving gratuity, 270
S. 150; pension agent taking fee, etc. 269 S. 151; not interesting in claim
against U. S. 271; not to solicit political contributions, 281; 282; crop
reports, 283-284; weather reports, 284; falsely pretending to be, 296;
bribery, etc. of, 315; who is, 317; animal bureau, interference with, 330;
resisting revenue, 331; pretending to be revenue, etc. 331; offering presents
to, 333; consular false certificate by, 336.

OLEOMARGARINE, see internal revenue.

OPINIONS, of trial court, care in expressing, etc. 86 S. 24a; 93 S. 28;92 S.27a
93 S. 28a; S. 29; 93-94.

OPIUM, 397; prohibited in Pacific islands, 453; 514-515; see drugs; con-
stitutional presumptions, 516.

ORDERING GOODS, no intention to pay, 168.
OTHER OFFENSE, proof of, 90 S. 26c.
ORDNANCE, purchase, sale or disposal of, 349.

PARDON, President cannot force acceptance of, 45 S. 7a; power of President,
etc. 534; acceptance, etc. 534. See President.

PAUPER, right to writ of error, 111 S. 42f. See indigent defendant; see
witness.

PARTICULABS, bill of, 112 S. 42g; see bill of particulars.
PATENT, forgery of, 286.

PAROLE, 537; see also pardon and president.

PASS, anti, law, 393.

PANDERING, 517; 521. See white slave. See slave.
PENALTY, on recognizance, etc. Remission of, 99 S. 35.

PENAL CODE, 605; appendix to, 757.
PENSION AGENT, taking fees, etc. 270 S. 151.

PERJURY, 228; form of oath, 228 S. 100; competent tribunal, officer, etc.
229 S. 101; oath must be authorized, 230 S. 101a; illustrative cases, 231 3.
102; materiality and wilfulness, 233-234; sufficiency of indictment, 234
S. 104; proof 235 S. 105-236 S. 105a; other illustrative cases, 236 S. 105b;
subornation, 237; attorney suborning, 238; elements of subornation 238 S.
106b. See subornation.

PEONAGE, 408; see civil rights; holding or returning to, 417; decisions, etc.
418-420.
804 INDEX.

PIRACY, 440; 442; extradition for, 443; 451-454.
PLATES, molds, etc. 204.
POLYGAMY, 458; 459; 461.

POSTAL CRIMES, jurisdiction of 131 S. 43; 132; entering P. O. 132; entering
postal car or interfering postal clerk, 134 S. 46; assaulting mail carrier,
etc. robbing mail or box, etc. 135 S. 47; obstructing mail, 136 S. 48;
mail on train, presumption, 138 S. 48a; delaying mail, 139; detaining mail,
139 S. 50; postmaster or other employee detaining, etc., 140 S. 51; stealing,
secreting, etc. mail, 145 S. 52; receiving stolen mail, 148 S. 52a; obscene,
etc. 148 S. 53; indictment, 157; mail intended to incite murder, arson, etc.
157 S. 53b; prize fight films, 157 S. 53; paid editorial to be marked, 158
S. 53d; libellous and indecent wrappers, etc. 159 S. 54; 161; duns and
postal cards, 163; fraudulent use of, 164-176; threatening letter, 167;
ordering goods, 168; indictment, punishment and number of counts, 172;
illustrative cases, 173; civil statute, 174 S. 56; fictitious address or name
175 S. 57; lottery, etc. 196 S. 58; 180; lottery cases, 182; illustrative
fraud cases, land schemes, stock schemes, 182-183; other fraud cases, 184
S. 62; postmasters not to be lottery agents, 184 S. 63; collection of un-
lawful postage, 187 S. 66; unlawful pledge or sale of stamps, 187 S. 67;
receiving stolen property, 189 S. 67a; failure to account for postage and
canceled stamps, 190 S. 68; issuing money orders without pay, 190
S. 69; one conviction no bar, 191 S. 69a; counterfeiting money order and
issuing without receiving money, 191 S. 70; counterfeiting postage stamps,
194; appropriating funds or failing to deposit, 195 S. 72; rural carriers,
embezzlements, etc. by, 199 S. 73; stealing post office property, 199 S. 74;
other offenses, 200 S. 75; illegally carrying mail, 201 S. 75a.

POSTAL CARD, 163; 180.

POSTMASTERS, not to be lottery agents, 184; false returns to increase pay,
185 S. 64; aiding or abetting, 186; civil remedy against for false pay, 186
S. 65; unlawful sale or pledge of stamps, 197 S. 67; see postal crimes.

POSTOFFICE, breaking into, etc. 132 S. 45.

POWER OF ATTORNEY, false, etc. 299.

POLITICAL CONTRIBUTIONS, not to be solicited or received, where, 281;
given money for, prohibited, 282; by corporations, not allowed, 343; 537.

PRINCIPALS, 535.

PRESIDENT, of United States, neutrality enforced by, 352-361. Pardon
cannot enforce, 145; 534; see pardon.

PRISONER, allowing escape of, 252 S. 115; applies to state jailor, 252;
rescueing, concealing, etc., also body, 252-253; see escape.

PRELIMINARY PROCEEDINGS, 62 S. 14.

PRIZE-FILMS, etc., 157 S. 53c; 461; defined, 462.

PRIVATE PROSECUTOR, 105 S. 41; see attorney; see district attorney.
PROOF, of former conviction, 106 S. 42.

PROSTITUTION, see white slave and pandering.

PROSTITUTES, reports of, 525; see white slave; see pandering.
INDEX. 805

PROCESS, for indigent defendant, 46 S. 8; stealing or altering, etc. 236 S. 107;
obstructing or assaulting officer, etc. 239; advice to avoid service of, 253.
See courts. ,

PROSECUTOR, PRIVATE, see attorney, see district attorney.

PROCEDURE, federal and not state, 46 S. 9; see state courts, see courts.

PROSECUTIONS, begun how, 56 S. 12.

PUBLIC STOCKS, false personation of holder, 299.

PUBLICITY, of contributions, 537; see political contributions and con-
tributions.

PUBLIC LANDS, timber depredations, etc. 323; other offenses on, 328-329.

PUBLIC RECORDS, destroy or stealing, 243; by officer in charge, 245 S. 110;
forgery of, 287.

PUBLIC LANDS, embezzlements of; depositing of; loan of, etc., 262-269;
receivers of, stolen, 322; see embezzlement; see theft.

PUBLIC TRIAL, what is, 50 S. 10a.
PUNISHMENT, by hanging only legal death, 527.

RAPE, assault to commit, 432; of female under sixteen is, 433 of female
passenger, 433; qualified verdict in, 535.

REASONABLE DOUBT, appellate court need not be so satisfied, 136 S. 47a.

RECEIVING STOLEN MAIL, etc., 148 S. 52a; stolen property, etc., 189 S.
67a; see theft; see embezzlement.

RESEMBLANCE, similitude, 219-220; see also similitude; see coinage.
RECORDS, public, destroy or stealing, 243 S. 109; forgery of, 246 S. 111.
REMOVAL, constitutional proviso, 39 S. 4; 62 S. 14; 63 S. 14b.

REPORT, failure to make, 268 S. 144; weather and crop, 283-284; forgery of,
329; see counterfeiting.

REVENUE, officers, resisting, etc., 331; falsely pretending to be, 331; offering
presents to, 333; taking seized property from, 336; see internal revenue.

ROBBERY, assault to commit, 432; 433; of train, 462.
RURAL CARRIERS, embezzlements, etc. by, 199 S. 73; see postal crimes.

SAILORS, recruiting to serve against United States, 349; confining on board
vessel, 408-411; assault on female passenger, by, etc. 433; see vessel.

SEAS, see high seas.

SEARCHES AND SEIZURES, constitutional proviso, 39 S. 4; search warrant
for counterfeit, etc. 225 S. 98.

SEDUCTION, 433; payment of fine to female, 434.
SEVERANCE, 100 S. 37.
806 INDEX.

SECURITY, U. S. what is, 202 S. 77; cases under, 204 S. 78; similitude,
204 S. 78; forging or counterfeiting, 207 S. 80; forging, etc. national
bank notes, 209 S. 81; other securities, including state bank, etc., 210-211;
allegation of knowledge, 213 S. 84; imitation of, 214-216; coins, counter-
feit, etc. 215-225; search warrant 225 §. 98. See counterfeiting.

SEARCH WARRANT, see lottery and see security.

SEDITIOUS, conspiracy, 348.

SENTENCE, correction of, ete. 95 S. 32, and 32a; no authority to suspend
95 S. 33; correction of, full, 95-99; 536; imprisonment, and where, 537;
see punishment.

SIMILITUDE, 204; 211-213; 219; 220; see resemblance; see counterfeiting,
see security; Shermal law, 122 S. 42p; see interstate commerce.

SLAVES, on vessel, 408-410; seizing on foreign shore, 410; bringing into U. S.
410; equipping vessel for, 410; transporting, hovering and serving, 411;
other provisions, 412-417; white slave act, 517; see peonage.

SMUGGLING, collection of duties, 539; passengers, 540; offenses 541-547;
false samples, 546; invoices, 547; see customs.

SOLDIERS OR SAILORS, recruiting to serve against U. 8. 349; see army
and navy.

STATE COURTS, used for postal offenses, when, 131-132; 528; decisions
showing both sovereignties, 528-529.

STATE FORMS, not followed, when, 46 S. 9.
STENOGRAPHER’S NOTES, may be used when, 46 S. 8.

STEALING, etc., mail, 145; post office property, 199 S. 74; process, etc. 238;
see theft; see embezzlements.

STATE LAWS, see state courts; see state forms; may prosecute under, 437;
132; 528.

STATE BANKS, notes, 211 S. 83.

STEAMBOAT, inspector, taking fees, etc. 270 S. 150.

STOLEN GOODS, 437; theft; see receiving stolen property.

STOCK, issuing, fraud, 183 S. 61.

SUPREME LAW, what is, 37 S. 1.

SURETIES, on bond, 100 S. 36b; see bail bond; see bond.

SUPERSEDEAS, not obligatory, 110 S. 42d; see also bail and bond; 127 S. 42r.
TESTIMONY, former trial, used when, 46 S. 8; see evidence.
TERRITORY, federal, defined, 428; territory code and U. S. code, 455.

THEFT, of arms or stores, etc. 305; of U. S. property, 320-321; of goods in
interstate commerce, 322; see larceny; receiving stolen goods 437.

THREATENING LETTER, 167; see postal crimes.
INDEX. 807

TIMBER, depredations, etc. 323; Indian, 325; firing, etc. 326-327. Boxing
for turpentine, 326; see land; see public land.

TRAIN, mail on, presumption, 138 S. 48a; robbery of, 462; see postal crimes;
see robbery.

TRIAL, public, 50 S. 10a.
TRADE COMMISSION, federal, 123 S. 42p; see Sherman law.

TREASON, conviction how, 39 S. 4; 344-345; punishment, 346; misprision of,
347; see crimes.

TRUST STATUTES, 122 S. 42p; see trade commission; see Sherman law.
TURPENTINE, boxing timber for, 326.

UNITED STATES COMMISSIONERS, 50 S. 11; see commissioners; see
courts.

UNITED STATES OBLIGATION OR SECURITY, 202 S. 77; property,
etc., theft, etc., of, receivers of, stolen, etc., 322; allegation of ownership,
323; see counterfeiting; see security; see obligation.

UNITED STATES, claims against, no officer to be interested in, 271; officer
accepting bribe, 278 S. 160; see officer; see member congress; see bribery.

UNITED STATES OFFICER, falsely pretending to be, 296; bribery etc. of,
315; who is, etc. 317; reveue, 331; offering presents to, 333; see bribery;
see accepting bribe; see officer.

UNREASONABLE SEARCHES AND SEIZURES, constitutional proviso,
39 S. 4. See searches and seizures; see evidence, illegally secured; see
documentary evidence illegally secured.

VENIREMEN, for grand jury and petit jury, etc. 56 S. 13; who shall draw,
how many, etc. 56 S. 14; challenges, to, 67; see juror; see abatement plea.

VERDICT, impeachment of, by jurors or third persons, 67 S. 16; 67 S. 16b;
87 S. 25; 88 S. 25a; on part counts, etc., 94 S. 31; motion to direct, 125 S.
42q; coercing of, 126; of murder, 429; qualified, 535.

VESSEL, arming, etc. 354; forfeiture of, 356; augmenting force of foreign of
war, 357; to depart and to give bond, when, 361; detention by collector,
362; slave, 408-411; other slave provisions, 412-417. Seduction of female
passenger, 433; fine to female, 434; punishment misconduct of officers,
etc. 434; maltreatment of crew, 442; mutiny, etc. 444; various offenses,
robbery of, etc. 447-454; U. S. 454; arming to cruize against U. S. 451.

VIOLATIONS OF LAW, right to inform as to, 374; see civil rights.

VOLUNTARY CONFESSIONS, 74 S. 20a.

VOTE, right to, 365-372; 373; see civil rights; see conspiracy.

WARRANT, issue, when, 63 S. 14a; search warrant, 225 S. 98; see searches and
seizures; see lottery; see counterfeiting; see constitutional.

WEATHER, reports, counterfeiting, molesting, etc. 284; 329.
WHIPPING, abolished, 528.
808 INDEX.

WHITE SLAVE, act, 517; decisions, 518; 520; 521; 522; other decisions, 524;
see pandering; see slave; see forms.

WILFULLY, see national banks.

WITNESS AGAINST SELF, 41 S. 7; immunity because of, 42 S. 7 and 7a;
confronting of defendant by, exception, 46 S. 8; see immunity; see witness.

WITNESS FOR INDIGENT DEFENDANT, 46 S. 8; 537; see pauper.

WITNESS, former conviction of, 106 S. 42; intimidation or corruption of, etc.
247 S. 112; intimidation of, conspiring to, 250 S. 113; accepting bribe,
256 S. 124; no trading in fees of, 269 S. 147;see against self; see for indigent
defendant.

WORKMEN, enticing away, etc. 319.

WRAPPERS, libellous and indecent, 159; what is outside wrapper, 161;
see postal crimes.

WRIT OF ERROR, habeas corpus not to be used as, 102S. 38a; assignments,
writ, etc. 110S. 42d; 1118S. 42f; time in which to lodge, etc. 127 S. 42r;
supersedeas, 127 S. 42r; direct to supreme court, when, 127; pauper
right to, 127; forms for, 600.

WRITING, handwriting, etc. 128 S. 42s; forgery of, 287-293.
ates
Teer