United States v. Nickerson

THIS case came up from the circuit court of the United States for the district of Massachusetts, upon a certificate of division in opinion between the judges thereof.

In March, 1854, Nickerson was indicted for perjury, by the grand-jury of the district court of the United States for the district of Massachusetts, which indictment was framed under the act of July 29, 1813, ch. 35, §§ 7, 9; (3 Stats. at Large, 49;) revived February 9, 1816, ch. 14, (3 Stats. at Large, 254.)

By section 7: 'The owner of every fishing vessel of twenty tons and upwards, his agent or lawful representative, shall, previous to receiving the allowance made by this act, produce to the collector, who is authorized to pay the same, the original agreement or agreements which may have been made with the fishermen employed on board such vessel, as is hereinbefore required, and also a certificate, to be by him subscribed, therein mentioning the particular days on which such vessel sailed and returned on the several voyages or fares she may have made in the preceding fishing season, to the truth of which he shall swear or affirm before the collector aforesaid.'

Section 9 then provides: That 'any person who shall make any false declaration, in any oath or affirmation required by this act, being duly convicted thereof, shall be deemed guilty of wilful and corrupt perjury, and shall be punished accordingly.'

At the trial on the indictment, before the district court, the offence set forth was, making a false declaration, under oath, before the collector, that the paper produced and sworn to by the defendant was the original agreement.

The judge of the district court, who tried the case, held that this oath to the original agreement with the fishermen was not required by the act of July 29, 1813, § 7, (3 Stats. at Large, 52.) That the relative which, in that section, applied to and was satisfied by the oath to the certificate of the particular days on which such vessel sailed and returned, &c.; and, consequently, no false declaration, in any oath required by that act, was set forth in the indictment; the only oaths required by the act of 1813 being to the days of sailing and returning, the time employed at sea, and the size of the boat or vessel.

The United States attorney then offered to prove that this was a false swearing, touching the expenditure of public money, under the act of March 1, 1823, § 3, (3 Stats. at Large, 770.) United States v. Bailey, 9 Pet. 238.

But the judge held the evidence inadmissible, and the defendant was acquitted.

In May, 1854, Nickerson was again indicted by the grand-jurors of the circuit court, for the crime of perjury, in swearing that the fishermen's agreement produced was the original agreement, when, in fact, it was not; and also in swearing that three fourths of the crew employed were citizens of the United States, or persons not subject to any foreign prince or state, whereas five out of nine persons employed were subjects of Victoria, queen of Great Britain and Ireland.

Whereupon Nickerson put in a plea setting forth the former in lictment and acquittal.

The district attorney of the United States demurred to the plea, and the judges differed in opinion whether the defendant's special plea aforesaid be good, in bar, to this indictment, and the question was certified to this court.

It was argued by Mr. Cushing, (attorney-general,) for the United States, and by Mr. Lothrop, for the defendant.

Mr. Cushing made the following points:--

1. The false swearing alleged in the two indictments, is not one and the same perjury, at common law; but there are two distinct statute offences: one for making a false declaration in a certain prescribed form of an oath, required under the act of 1813; and the other for falsely swearing in order to effect a specific purpose, under an oath that may be required, but is not specified in the act of 1823.

2. The defendant could not have been tried under the first indictment, for the crime created by the act of 1823; because, to constitute the statute offence with which he was charged in the first indictment, under the act of 1813, there must be a false declaration made in an oath required by that statute. If the alleged false oath was not required by that act, no offence was set forth in the indictment.

3. So, also, to constitute the statute offence, under the act of 1823, touching the expenditure of public money, there must be a false swearing in an oath legally administered, and required or authorized by law. United States v. Bailey, supra.

4. The first indictment charged no false swearing, except in an oath required by the act of 1813. The second indictment, under the act of 1823, does set forth an oath necessary and required, impliedly by law, and expressly by the secretary of the treasury and by the collector, before the public money can be expended to pay the fishing bounty to the owner or agent of a fishing vessel.

5. The indictment, to which the plea of former acquittal is made, further sets forth a false swearing in the oath required by the collector, under the authority of the rules and regulations of the treasury department, in order to satisfy himself that two thirds of the crew of the fishing vessel were citizens of the United States.

This the act of March 1, 1817, makes a prerequisite to obtaining the fishing bounty, that the officers, and at least three fourths of the crew, shall be proved, to the satisfaction of the collector, to be citizens of the United States. 3 Stats. at Large, 351, § 3.

This act does not prescribe an oath, but it constitutes the collector the judge of that fact, and prohibits the expenditure of the public money, by payment of the bounty, unless the collector is satisfied on that point; and hence such rules and modes of proof may be prescribed, including an oath, which are requisite and proper to establish that fact.

7. If the district judge erred in deciding that the oath set out in the first indictment was not required by the act of 1813, the defendant cannot avail himself of that error; because it was a ruling in his favor, and against the United States, which could not except, but were bound by it in that cause.

8. If the district judge was right in that ruling, the defendant, who thereupon objected to the admission of evidence, to show another offence of falsely swearing under the act of 1823, cannot avail himself of the plea of former acquittal; because he was acquitted of the offence only set forth in the first indictment, and not of the offence set forth in the second indictment, which is another and different offence.

9. The two statute crimes are different and distinct, and require different averments; because the offence created under the act of 1813 is declared to be wilful and corrupt perjury, whereas the offence created by the act of 1823 is the crime of swearing falsely, touching the expenditure of public money, &c.; and the form, nature, or import of the oath is not prescribed, as it is in the act of 1813; nor is it declared or deemed to be wilful and corrupt perjury, by the act of 1823; but upon conviction of swearing falsely, touching the expenditure of public money, the party so convicted 'shall suffer as for wilful and corrupt perjury;' and this prescribes the punishment, and does not define the offence to be perjury, as defined at common law.

10. The courts of the United States, having no common-law jurisdiction of crimes, except statute offences only, must be strictly governed by the statute creating the offence, and cannot go beyond the precise statute offence, which is specifically and formally set forth in the indictment.

11. It is desirable that, in the decision of this cause, the court should pass upon the questions incidentally raised, touching the legality of the oaths required by the treasury department and by collectors, as prerequisites to obtaining, by owners and agents, the bounty allowed to fishing vessels.

Authorities incidental may be referred to in The Boat Swallow, Ware's R. 21; The Harriet, Ib. 343; S.C.. 1 Story's R. 251.

Mr. Lothrop, for the defendant, made the following points:--

First Point. The evidence which is competent and essential to support the present indictment might have been offered in proof, and in support of the former indictment. Regina v. Bird, Parke, Baron, 6 Br. Cr. Cas. 201; Act of 30th April, 1790, ch. 9, § 19, (1 Stats. at Large, 117;) 1 Chitty's Crim. L. 276, 281; 1 Starkie's Crim. Plead. 301; Act of Congress July 29, 1813, ch. 35, (3 Stats. at Large, 49;) Act of Congress March 1, 1817, ch. 31, § 3, (3 Stats. at Large, 351;) Act of Congress March 1, 1823, ch. 37, § 3, (3 Stats. at Large, 771;) Act of Congress March 3, 1825, ch. 65, § 13, (4 Stats. at Large, 118;) United States v. Nickerson, Law Reporter for September, 1854.

Second Point. The present indictment contains sundry allegations which do not constitute, if true, the crime of perjury. Coke, 3d Inst. 165; United States v. Bailey, 9 Pet. 238, Opinion of Mr. Justice McLean; United States v. Taylor, Law Reporter for September, 1854, p. 271; 1 Chitty's Cr. L. 295, 396.

Mr. Justice CURTIS delivered the opinion of the court.