Franklin v. United States

Three indictments were returned against plaintiff in error by the grand jury in the southern district of New York. In the first of said indictments he was charged with the embezzlement of certain personal property of the cadets at the United States Military Academy, upon a government reservation, to wit, the West Point Military Reservation, in the southern district of New York, in violation of § 5391, Revised Statutes, as amended by the act of July 7, 1898 [30 Stat. at L. 717, chap. 576, U.S.C.omp. Stat. 1901, p. 3652], and of §§ 528 and 531 of the New York Penal Code.

In the second indictment he was charged with making and presenting to an officer of the Army, for approval, false claims upon the government of the United States for supplies furnished to the cadet mess at Wast Point, in violation of § 5438, Revised Statutes (U.S.C.omp. Stat. 1901, p. 3674); and in the third indictment, he was charged with making and presenting to an officer of the Army, for approval and for payment, a false claim upon the United States War Department, and upon the treasurer of the United States Military Academy in violation of § 5438, Revised Statutes.

Demurrers to the indictments were overruled and they were then consolidated. The first of said indictments contained six counts, in three of which plaintiff in error was charged with grand larceny in the second degree, under the New York Penal Code, and in the other three he was charged with embezzlement of the same funds, in violation of the New York Penal Code; but the first three of said counts were nolle prossed. The defendant thereupon pleaded guilty to all three of the indictments; but before judgment was pronounced, he moved in arrest of judgment, the grounds of his motion being as follows:

'1. Because the said fourth, fifth, and sixth counts of the indictment against the said defendant for grand larceny under § 2, chapter 576, act of July 7, 1898, to and of which the defendant pleaded and was found guilty, do not, nor does any one of the said counts, charge a criminal offense under the laws of the United States.

'2. Because the said § 2, chapter 576, of an act of Congress approved July 7, 1898, entitled, 'An Act to Protect the Harbor Defenses and Fortifications Constructed or Used by the United States from Malicious Injury, and for Other Purposes,' is unconstitutional and void.

'3. Because, by the Constitution and the laws of the United States, this court here has no jurisdiction of the offense alleged to have been committed by this defendant in said fourth, fifth, and sixth counts of the said indictments, because he says the said § 2, chapter 576, of the said act of Congress approved July 7, 1898, confers upon this court here no jurisdiction of this cause, nor any legal power to hear, try, and determine the same, inasmuch as the punishment for the offense alleged in said indictment, and in each and every count thereof, when committed by the treasurer of the United States Military Academy, an officer of the Army of the United States, is provided for by § 1342, Revised Statutes of the United States (U.S.C.omp. Stat. 1901, p. 944); and inasmuch as, by the said Constitution and laws, exclusive jurisdiction over said offense, when committed by a person subject to military jurisdiction, is vested in the properly constituted and authorized courts-martial of the United States.

'4. Because the facts alleged in said counts under § 5438, Revised Statutes of the United States, do not, as alleged in said counts, or in any one of them, charge a criminal offense against the United States.'

This motion was overruled, and defendant was sentenced to serve a term of imprisonment of two and one-half years in the United States penitentiary at Atlanta; and, errors being assigned which raised the questions presented in the motion in arrest of judgment, the case was removed to this court by writ of error.

The statutes under which said indictments were found are as follows:

1. Section 2 of the act of July 7, 1898 (30 Stat. at L. 717, chap. 576, U.S.C.omp. Stat. 1901, p. 3652):

'That when any offense is committed in any place, jurisdiction over which has been retained by the United States or ceded to it by a state, or which has been purchased with the consent of a state for the erection of a fort, magazine, arsenal, dockyard, or other needful building or structure, the punishment for which offense is not provided for by any law of the United States, the person committing such offense shall, upon conviction, in a circuit or district court of the United States for the district in which the offense was committed, be liable to and receive the same punishment as the laws of the state in which such place is situated now provide for the like offense when committed within the jurisdiction of such state, and the said courts are hereby vested with jurisdiction for such purpose; and no subsequent repeal of any such state law shall affect any such prosecution.'

2. Sections 528 and 531 of the Penal Code of New York:

'Sec. 528. A person who, with the intent to deprive or defraud the true owner of his property, or of the use and benefit thereof, or to appropriate the same to the use of the taker, or of any other person, either—

'1. Takes from the possession of the true-owner, or of any other person; or obtains from such possession by color or aid of fraudulent or false representation or pretense, or of any false token or writing; or secretes, withholds, or appropriates to his own use, or that of any person other than the true owner, any money, personal property, thing in action, evidence of debt or contract, or article of value of any kind; or,

'2. Having in his possession, custody, or control, as a bailee, servant, attorney, agent, clerk, trustee, or officer of any person, association, or corporation, or as a public officer, or as a person authorized by agreement or by competent authority, to hold or take such possession, custody, or control, any money, property, evidence of debt or contract, article of value of any nature, or thing in action or possession, appropriates the same to his own use, or that of any other person other than the true owner or person entitled to the benefit thereof, steals such property and is guilty of larceny.



'Sec. 531. A person is guilty of grand larceny in the second degree, who, under circumstances not amounting to grand larceny in the first degree, in any manner specified in this article, steals or unlawfully obtains or appropriates: '1. Property of the value of more than $25, but not exceeding $500, in any manner whatever; or

'2. Property of any value, by taking the same from the person of another; or

'3. A record of a court or officer, or a writing, instrument, or record kept, filed, or deposited according to law, with, or in keeping of, any public office or officer.'

3. Section 5438, Revised Statutes, so far as applicable to these indictments:

'Every person who makes or causes to be made, or presents or causes to be presented, for payment or approval, to or by any person or officer in the civil, military, or naval service of the United States, any claim upon or against the government of the United States, or any department or officer thereof, knowing such claim to be false, fictitious, or fraudulent, or who, for the purpose of obtaining or aiding to obtain the payment or approval of such claim, makes, uses, or causes 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. . . every person so offending in any of the matters set forth in this section shall be imprisoned at hard labor for not less than one nor more than five years, or fined not less than one thousand nor more than five thousand dollars.'

Messrs. Holmes Conrad and S. T. Ansell for plaintiff in error.

[Argument of Counsel from pages 563-565 intentionally omitted]

Solicitor General Bowers for defendant in error.

Statement by Mr. Chief Justice Fuller:  Mr. Chief Justice Fuller delivered the opinion of the court: