Crain v. United States

One count in an indictment may refer to matter in a previous count so as to avoid unnecessary repetition; and if the previous count be defective or is rejected, that circumstance will not vitiate the remaining counts, if the reference be sufficiently full to incorporate the matter going before with that in tile count in which the reference is made.

A count in an indictment which charges that the defendant did certain specified things, and each of them, the doing of which and of each of which was prohibited by statute, and also that he caused the doing of such things and of each of them, is not defective so as to require that judgment upon it be arrested; and there may be a verdict of guilty upon proof that tile accused had done any one of the things constituting a substantive crime under the statute.

A record which sets forth an indictment against a person for the commission of an infamous crime; the appearance of the prosecuting attorney; the appearance of the accused in person and by his attorney; au order by the court that a jury come "to try the issue joined;" the selection of a named jury for the trial of the cause, who were "sworn to try the issue joined and a true verdict render;" the trial; the retirement of the jury; their verdict finding the prisoner guilty; and the judgment entered thereon in accordatice therewith; does not show that the accused was ever formally arraigned, or that he pleaded to the indictment, and the conviction must be set aside; as it is better that a prisoner should escape altogether than that a judgment of conviction of an infamous crime should be sustained, where the record does not clearly show that there was a valid trial.

writ of error brought up for review a judgment in the District Court of the United States for the Western District of Arkansas, by which the plaintiff in error was sentenced to imprisonment in the House of Correction at Detroit, Michigan, at hard labor, for the term of three years.

The defendant was indicted under section 5121 of the Revised Statutes, which provides: "Every person who falsely makes, alters, forges or counterfeits; or causes or procures to be falsely made, altered, forged or counterfeited; or willingly [p626] aids or assists in the false making, altering, forging or counterfeiting, any deed, power of attorney, order, certificate, receipt or other writing, for the purpose of obtaining or receiving, or of enabling any other person, either directly or indirectly, to obtain or receive from the United States, or any of their officers or agents, any sum of money; or who utters or publishes as true, or causes to be uttered or published as true, any such false, forged, altered or counterfeited deed, power of attorney, order, certificate, receipt or other writing, with intent to defraud the United States, knowing the same to be false, altered, forged or counterfeited; or who transmits to, or presents at, or causes or procures 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 or other writing, in support of, or in relation to, any account or claim, with intent to defraud the United States, knowing the same to be false, altered, forged or counterfeited, shall be imprisoned at hard labor for a period of not less than one year nor more than ten years; or shall be imprisoned not more than five years and fined not more than one thousand dollars."

The indictment contained three counts. The first count set out in full a declaration purporting to have been made by one Spahiga, a resident of the Creek Nation, in the Indian Territory, for an invalid pension, to which was appended a certificate or statement purporting to have been made by two persons named Marrel and Fixico, to the effect that they were present and saw Spahiga sign his name or make his mark to said declaration, and that they had every reason to believe that he was the identical person that he represented himself to be. The declaration and accompanying certificate or statement purported to have been sworn to on the 4th day of August, 1892, before "A.W. Crain, U.S. Comm'r, Pension Notary."

The second count charged: "That herefore, to wit, on the 4th day of August, A.D. 1892, one Spahiga is alleged to have executed a certain declaration and affidavit; said declaration and affidavit are in words and figures as set out in the first count of this indictment, and said declaration and affidavit [p627] purporting to be executed before one A.W. Crain, United States commissioner in the Creek Nation, in the Indian Territory, the said; Spahiga claiming in said declaration a pension from the United States as soldier of war of rebellion, who in said declaration was alleged to have enlisted under the name of Spahiga, at, on the 12th day of August, 1863, Company D, First Regiment, Indian Home Guards, Indian Territory; in the war of the rebellion; said declaration and affidavit, after being so made, executed and falsely counterfeited and forged by said Alex. W. Crain, was by said Alex. W. Crain forwarded, with intent to defraud the United States and to obtain certain moneys from the United States, to the office of the Commissioner of Pensions, in the Department of the Interior, at the city of Washington, in the District of Columbia, where the same was duly filed on the 12th day of August, 1892, as a claim against the Government of the United States for a pension by the said Spahiga, as soldier aforesaid, as aforesaid, and being so filed for approval by the said A.W. Crain, in the office aforesaid, by the Commissioner of Pensions, and the said affidavit and declaration being material on the question pending before said Commissioner of Pensions as to whether the said Spahiga was by the laws of the United States entitled to a pension. And the jurors aforesaid upon their oaths aforesaid do further present that on the 4th day of August, 1892, at the Creek Nation, Indian Territory, and within the Western District of Arkansas, at which date said declaration, affidavit and claims were prepared and made for filing in the office of the Commissioner of Pensions, as aforesaid, the same being an office of the United States, for the purpose aforesaid, one Alex. W. Crain did make, execute and forge, and cause, to be made, executed, and forged, a certain pretended and false affidavit, or the same may be called a certificate, the same being one and the same paper, and being in form and substance as hereinafter set out, which said forged, false and counterfeited affidavit or certificate was fraudulent, and was a part of the said declaration and, affidavit above mentioned, and was forwarded, together with the said declaration, to the office of the Commissioner of Pensions aforesaid [p628] for the purpose of defrauding the United States and of aiding and abetting the said Spahiga to obtain the approval of the said Commissioner of Pensions to his said claim for a pension as aforesaid, for the purpose of aiding the said Spahiga, fraudulently to obtain money from the United States; which said pretended and false affidavit and certificate is in substance set out in the first count of this indictment. The said pretended affidavit and certificate and declaration were forged, false and fraudulent, and did contain fraudulent and fictitious statements, as the said A.W. Crain well knew, in this: That Pahose Marrell, Spahiga and Nokos Fixico did not sign said pretended affidavit and certificate, declaration and affidavit, as set forth in said false certificate and affidavit, and said Pahose Marrell, Spahiga, and said Nokog Fixico were not sworn as to the truth of thq matters and things set forth in said pretended declaration, affidavit and certificate, but in truth and fact the said A. W. Crain did knowingly and wilfully, feloniously and falsely make, counterfeit, forge and cause to be made, counterfeited and forged the names of Pahose Marrell, Spahiga and Nokos Fixico to and upon the said false and forged affidavit and certificate with intent to defraud the United States and to aid the said Spahiga in obtaining money fraudulently from the United States, and that the said A. W. Crain did not swear the said Pahose Marrell, said Spahign, and the said Nokos Fixico as to the truth of the matters and things set forth in said declaration, affidavit and certificate, 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."

The third count charged "that A.W. Crain, on the 4th day of August, A.D. 1892, at the Greek Nation, in the Indian country, within the Western District of Arkansas aforesaid, unlawfully and feloniously did transmit to the office of the Commissioner of Pensions of the United States, the same being an office under the government of the United States, and for the purpose of defrauding the United States, the false and forged instrument of writing set out in the first count of this indictment, contrary," etc.

[p629] The record of the trial in the trial court, omitting captions, was as follows"

"On this day come the United States of America, by Jas. F. Read, Esq., attorney for the western district of Arkansas, and come, the said defendant, in his own proper person and by his attorney, Win. It. Mellette, Esq., and on motion of plaintiff, by its attorney, it is ordered by the court that a jury come to try the issue joined; whereupon the following were selected for the trial of this cause, to wit, [naming them] twelve good and lawful men of the district aforesaid, duly selected, empanelled, and sworn to try the issue joined and a true verdict render according to the law and the evidence, and, after hearing the evidence and argument of counsel and receiving the charge of the court, retired to consider of their verdict, and after a short time returned into court the following veidict, to wit:

"We, the jury, find the defendant, A.W. Crain, guilty as charged in the first, second, and third counts of the within indictment.

(Signed)

"Whereupon, by order of the court, the jury was discharged from the further consideration of the case and the said defendant committed to the custody of the marshal to await final sentence.

"On this day comes the said defendant, by his attorney, and files his motion for arrest of judgment herein."

That motion was as follows:

"Now comes the defendant and moves the court to arrest the judgments on the verdict of the jury rendered on the three counts herein for the following reasons, and to set aside said verdicts:

"1st. Because the first count of the indictment upon which said verdict was rendered is defective in substance, in this, that it does not state in what particular the affidavit, declaration or certificate set forth therein is forged, and traverses the same.

[p630] "2d. Because said indictment does not state which declaration, certificate or affidavit therein set forth is false, there being two such documents.

"3d. Because the first count of said indictment does not allege that defendant knew that the document set forth therein was false.

"4th. Because said first count charges no act which is a crime or misdemeanor under the laws of the United States.

"5th. Because the second'count in said indictment is double, containing and including three distinct offences therein, to wit: That the defendant forwarded to the Pension Department of the United States two separate and distinct affidavits or declarations or certificates for the purpose of defrauding the United States, and that the defendant did falsely make, counterfeit and forge and cause to be, made, counterfeited and forged a certain pretended and false affidavit or certificate for the purpose of defrauding the United States and obtaining money from the United States.

"6th. Because the second count of said indictment does not set out with sufficient certainty the affidavit, certificate or declaration alleged therein to have been falsely made, forged and counterfeited and unlawfully forwarded to the office of the Commissioner of Pensions.

"7th. Because the said count is not complete within itself, but in an indefinite and uncertain manner refers to a document contained and set forth in the first count of said indictment.

"8th. Because the second count of said indictment is indefinite and misleading, in this, that it alleges that the names of Pahose Mahlah, Spahiga and Nocus Fixico were forged to one and the same document, as set out in the first count of the indictment, which is not a fact.

"9th. Because said second count does not state in what particular the affidavit or declaration or certificate set out therein is false and was forged.

"10th. Because the said second count does not in a legal manner charge any offence against the laws of the United States.

[p631] "11th. Because the third count of said indictment is defective in substance, in this, that it does not state in what particular the affidavit or instrument of writing therein referred to as being set out in the first count of said indictment is false and forged.

"12th. Because the reference made in said third count to an instrument of writing set forth in the first count is indefinite and uncertain.

"13th. Because said third count does not state which instrument of writing set forth in the first- count was unlawfully forwarded to the Pension Office.

"14th. Because the third count of said indictment does not state that the defendant knew that the instrument of writing alleged to have been unlawfully forwarded to the Pension Office was false and forged.

"15th. Because said third count charges no act which is a crime under the laws of the United States.

"Wherefore defendant prays that he be discharged."

On the 28th of December following the court sustained the motion for arrest of judgment as to the first and third counts, and overruled it as to the second count. The record then proceeds:

"On motion of Jas. F. Read, Esq., attorney for the western district of Arkansas, the said defendant, A.W. Crain, was brought to the bar of the court in custody'of the marshal of said district, and, it being demanded of him what he has or can say why the sentence of the law upon the verdict of guilty (second count) heretofore returned against him by the jury in this cause on the 9th day of Nov., A.D. 1894, shall not now be pronounced against him, he says he has nothing further or other to say than he has heretofore said."

The court then sentenced the prisoner to imprisonment at hard labor for three years.. On the 22d day of January, 1895, the following entries appear in the record.

"Now comes defendant, Alex. W. Crain, by his attorney, Wm. M. Mellette, Esq., and tenders this his bill of exceptions in the above entitled cause and asks that the same be signed and made a part of the record in this case, which is accordingly done.

[p632] "Also at the same time presents his assignment of errors, which is ordered filed.

"Also at the same time presents his petition asking for writ of error to the Supreme Court of the United States, which petition is ordered filed and writ of error ordered issued."

The exception was to the overruling the motion in arrest of judgment as to the second count of the indictment.

The assignments of error were: (1) That it was error to overrule the motion in arrest of judgment upon the conviction upon the second count of the indictment; (2) That it was error to render judgment against the defendant upon the verdict of guilty on that count, and to sentence him to imprisonment thereon.

In the brief for the plaintiff in error in this court it was said: "The plaintiff in error was not given an opportunity to plead to the indictment before being put upon his trial, never having been arraigned, as is fully shown by an inspection of the printed record. An arraignment is essential to a valid trial."

Mr. A.H. Garland and Mr. R.C. Garland for plaintiff in error.

Mr. Assistant Attorney General Whitney for defendants in error.