Prussian v. United States/Opinion of the Court

Prussion, the petitioner, was convicted in the District Court for Eastern New York of forging an indorsement purporting to be that of a payee of a government draft. At the trial, by motions to dismiss and in arrest of judgment, the sufficiency of the indictment was challenged on the ground that the offense charged was the forging of an obligation of the United States in violation of section 148 of the Criminal Code, U.S.C. tit. 18, § 262 (18 USCA § 262) and that the indorsement alleged to have been forged was not such an obligation. The Court of Appeals for the Second Circuit affirmed the judgment, holding that the indictment sufficiently charged a violation of that section. 42 F.(2d) 854.

Certiorari was asked on the ground, among others, that the decision below conflicted with decisions of the Court of Appeals for the Eighth Circuit. Gesell v. United States, 1 F.(2d) 283; Lewis v. United States 8 F.(2d) 849. See, also, White v. Levine (C. C. A.) 40 F.(2d) 502. In accord with the decision below are Hamil v. United States (C. C. A.) 298 F. 369, and Alvarado v. United States (C. C. A.) 9 F.(2d) 385. Cf. United States v. Jolly (D. C.) 37 F. 108; De Lemos v. United States (C. C. A.) 91 F. 497. Because of the conflict, the petition was not opposed by the government, although it suggested that the indictment might also be upheld as charging a forgery of a 'writing, for the purpose of obtaining * *  * from the United States *  *  * any sum of money' under section 29 of the Criminal Code, U.S.C. tit. 18, § 73 (18 USCA § 73). This court granted the petition, 282 U.S. 824, 51 S.C.t. 82, 75 L. Ed. -, October 20, 1930, limiting review to the question whether the indictment stated an offense under the Criminal Code.

The indictment charged the forging by petitioner of 'a certain obligation of the United States,' described as the indorsement on a draft, drawn by a disbursing clerk of the United States Treasury upon the Treasurer of the United States and issued to the payee, 'by falsely making and forging the name of the payee * *  * on the back of said draft.' It set out a copy of the draft and the indorsement, and alleged that together they constituted a forged obligation of the United States. The indictment also set up that the indorsement was 'for the purpose of obtaining and receiving from the Treasurer of the United States a sum of money,' and was stated to be in violation of both sections 29 and 148 of the Criminal Code (18 USCA) §§ 73, 262).

Under section 148, 'whoever, with intent to defraud, shall falsely make, forge, counterfeit, or alter any obligation or other security of the United States,' is guilty of a criminal offense. Section 147 (18 USCA § 261) provides: 'The words 'obligation or other security of the United States' shall be held to mean all * *  * checks, or drafts for money, drawn by or upon authorized officers of the United States.' It is apparent that the draft drawn on the Treasurer by an authorized officer is an 'obligation *  *  * of the United States' both in common parlance and by the express definition of section 147. But to extend the meaning of that phrase so as to embrace the indorsement on the government draft is to enlarge the statutory definition, and would be possible only by a strained construction of the language of sections 147 and 148, inadmissible in the interpretation of criminal statutes, which must be strictly construed. See Fasulo v. United States, 272 U.S. 620, 47 S.C.t. 200, 71 L. Ed. 443; United States v. Salen, 235 U.S. 237, 35 S.C.t. 51, 59 L. Ed. 210.

The writing described in the indictment, when issued by the drawer, was a check or a draft. The added indorsement was in itself neither a check nor a draft. We need not stop to consider the argument advanced that the obligation upon the draft does not become complete until it is indorsed (see Hamil v. United States, supra, 298F. 371), for it overlooks the circumstance that the meaning of 'obligation' in section 148 is narrowed by the definition in section 147 to specifically enumerated written instruments, including checks or drafts for money, which are complete, as such, within the statutory definition and in common understanding, at least when issued to the payee by an authorized officer of the government. The indorsement was at most the purported obligation of the indorser, not of the United States, and a purported transfer of the title of the draft to the indorsee. In neither aspect was the indorsement itself an obligation of the United States as defined by section 147, or such a part of the draft as to constitute the forging of the indorsement a forgery of the draft.

If the point were doubtful, the doubt would be resolved by a consideration of the purpose and history of the act of which section 148 is a part, and a comparison of it with related provisions of the Criminal Code. Its purpose has been declared by this court to be the protection of the bonds or currency of the United States, and not the punishment of any fraud or wrong on individuals. Dunbar v. United States, 156 U.S. 185, 193, 15 S.C.t. 325, 39 L. Ed. 390. Cf. United States v. Turner, 7 Pet. 132, 136, 8 L. Ed. 633; United States v. Stewart, 4 Wash. C. C. 226, Fed. Cas. No. 16,402. Section 148 is a re-enactment of section 18 of the Act of April 10, 1816, 3 Stat. 266, 275, which made punishable the forgery of bills, notes, orders, or checks of the Bank of the United States. The legislation took substantially its present form in the Act of June 30, 1864 (chapter 172, 13 Stat. 218, 221, 222), section 10 of which (later Rev. St. § 5414) extended its penal provisions to the forgery of 'any obligation or security of the United States,' and section 13 of which (later Rev. St. § 5413) defined obligations of the United States substantially as in the present section 147. Before the enactment of the 1864 prototype of section 148, the purpose of the 1816 act had been declared, in United States v. Turner, supra, to be 'to guard the public from false and counterfeit paper, purporting on its face to be issued by the bank'; and it had been held to be inapplicable to a forged indorsement upon a genuine post note of the bank. United States v. Stewart, supra. In the light of this history, the omission of any reference to indorsements in section 148 is not without significance; and it is worthy of note that Congress later enacted laws specifically punishing forgery of indorsements on pension checks and money orders. Title 38, U.S.C. § 128; title 18, U.S.C. § 347 (38 USCA § 128; 18 USCA § 347).

But we think the indictment is to be sustained as charging an offense under section 29 of the Criminal Code (18 USCA § 73), which punishes the forgery of 'any deed, power of attorney, order, certificate, receipt, contract, or other writing, for the purpose of obtaining or receiving * *  * from the United States, or any of their officers or agents, any sum of money.' The indictment alleges specifically and with certainty the forgery of the indorsement on the draft, for the purpose of obtaining a sum of money from the Treasurer of the United States, and charges a violation of section 29. We think the indorsement was a 'writing' within that section. Its language is 'comprehensive' and 'all-embracing.' Cf. United States v. Davis, 231 U.S. 183, 188, 34 S.C.t. 112, 58 L. Ed. 177. The writings enumerated have no common characteristic from which a purpose may be inferred to restrict the statute to any particular class of writings. The addition of 'other writing' to the enumeration was therefore not for the purpose of including writings of a limited class, but rather of extending the penal provisions of the statute to all writings of every class if forged for the purpose of obtaining money from an officer of the United States. See Howgate v. United States, 7 App. D. C. 217, 232, 233. Cf. United States v. Lawrence, 13 Blatch. 211, Fed. Cas. No. 15,572. It has been generally assumed by the lower federal courts that section 29 covers the forging of an indorsement. United States v. Winters (D. C.) 5 F.(2d) 321; Gesell v. United States, supra, 1 F.(2d) 287, 288; White v. Levine, supra; Bailey v. United States (C. C. A.) 13 F.(2d) 325; Lewis v. United States, supra. Cr. United States v. Albert (C. C.) 45 F. 552; De Lemos v. United States, supra. But see, contra, Hamil v. United States, supra, 298 F. 372. Cf. United States v. Wilson, Fed. Cas. No. 16,732.

Petitioner asserts that the indictment is defective in that it does not charge that the forgery was with intent to defraud the United States. See White v. Levine, supra, 40 F.(2d) 503. No such averment is required by the language of section 29 relating to forged indorsements. Other provisions of section 29 punish the uttering of a forged writing, or presenting any such writing to an officer of the United States in support of any claim, 'with intent to defraud the United States.' But the present indictment is not under either of those provisions. The charge is forgery of the indorsement, which is punishable by the different provision, now in question, if committed merely 'for the purpose of obtaining or receiving' from an officer or agent of the United States any sum of money. This imports an intent to defraud the United States, which the indictment sufficiently charges in the language of the statute.

Nor is the present indictment defective, as is urged, because its material allegations are uncertain or repugnant. The accused was left in no uncertainty that he was charged with only a single act, that of forging the indorsement for the specified purpose. The judgment here would constitute an unmistakable bar to any future prosecution for the same offense. The validity of the indictment is therefore not affected by the fact that the pleader, through excess of caution, has mistakenly stated the act to be a violation of both section 148 and section 29. See Williams v. United States, 168 U.S. 382, 18 S.C.t. 92, 42 L. Ed. 509.

Affirmed.