Pointer v. United States, 151 U.
S. 396, sustained and applied to the point that it is
not error to join distinct offenses in one indictment, in separate
counts, against the same person.
A person who presents to the Third Auditor of the Treasury what
purports to be an affidavit before a justice of the peace in
support of a fraudulent claim against the government is estopped to
deny that the document was not an affidavit when presented in
evidence in criminal proceedings against him for such fraudulent
act.
It is not necessary in the first instance, in order to prove
such offense, to produce the commission of the justice or to
introduce other official evidence of his appointment.
The case is stated in the opinion.
MR. JUSTICE HARLAN delivered the opinion of the Court.
By the first count of an indictment in the court below, it was
charged that the plaintiff in error, Royal Ingraham, on the 11th
day of December, 1890, within the District of Rhode Island, did
knowingly, willfully, and unlawfully make and present, and cause to
be made and presented for payment and approval to the Third Auditor
of the Treasury of the United States of America a claim for payment
and reimbursement to him of certain alleged expenses of the last
sickness and burial of his mother, Freelove Ingraham, who in her
lifetime had been a pensioner of the United States of America under
a pension issued to her, and who prior to the above date had died,
leaving no widower or minor child surviving her, which claim,
Page 155 U. S. 435
it was alleged, was false, fraudulent, and fictitious in that it
was stated in it that the last sickness of the pensioner continued
uninterruptedly from July 21, 1889, to the date of her death, on
the 19th day of September, A.D. 1890, that he had actually paid to
Perry Ingraham and Mary Ingraham, for board, nursing, and medicines
furnished to the pensioner, the sum of $318, and to one Zylphia
Ingraham, for services as nurse, the sum of $148.57, whereas the
last sickness of the pensioner was of only a few days' duration,
and the defendant had not at the time when he made his claim, paid
to Perry Ingraham and Mary Ingraham any sum for board, nursing, and
medicine so furnished, and to Zylphia Ingraham any sum for services
as nurse; he then and there well knowing his claim to be false,
fraudulent, and fictitious, and the third auditor being then and
there authorized to approve and allow it.
By a second count in the indictment, it was charged that the
plaintiff in error, on the 11th day of December, 1890, for the
purpose of obtaining and aiding to obtain the payment and approval
of the above claim, did knowingly, willfully, and unlawfully use
and cause to be used a certain false affidavit, to-wit, the
affidavit of Perry Ingraham and Mary E. Ingraham, subscribed and
sworn to on the 9th day of December, A.D. 1890, before Daniel H.
Remington, a justice of the peace; he then and there well knowing
that said affidavit contained the fraudulent and fictitious
statement that on the 1st day of November, 1890, they (Perry
Ingraham and Mary E. Ingraham) received from him the sum of $318 in
payment of an account therein stated for board, nursing, and
medicine furnished to the pensioner, Freelove Ingraham, in her
lifetime, whereas they, or either of them, did not at any time
prior to the making of such affidavit, receive from him any sum in
payment of an account for board, nursing, or medicine so furnished,
or for any services rendered to said pensioner.
There was evidence before the jury tending to show that the
accused presented to the Third Auditor of the Treasury of the
United States, and used and caused to be used before that officer,
in the prosecution of his claim against the government
Page 155 U. S. 436
of the United States, a certain paper, in the form of and
purporting to be an affidavit signed by Perry Ingraham and Mary E.
Ingraham and purporting to be sworn to before Daniel H. Remington
as a justice of the peace, and certified to that effect by him. But
there was no further testimony tending to show that Remington was
duly commissioned and qualified as a justice of the peace, and was
authorized to administer oaths. Nor does the bill of exceptions
state what evidence relating to other points was adduced before the
jury.
At the conclusion of the evidence, the prisoner presented
several requests for instructions to the jury. These requests were
refused, and an exception was properly taken to the action of the
court.
After a verdict of guilty and the denial of a motion in arrest
of judgment, the defendant was sentenced to one year's imprisonment
at hard labor in the state's prison. 49 F. 155.
The indictment in this case was based on section 5438 of the
Revised Statutes of the United States. So much of that section as
is relevant to this case is in these words:
"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."
1. Although each count of the indictment charged a distinct
offense, it was not error to embrace both offenses in one
indictment, in separate counts. Such joinder, where two or more
acts or transactions are connected together, or are of the same
Page 155 U. S. 437
class of crimes or offenses, is expressly provided for in
section 1024 of the Revised Statutes. The subject of the joinder of
distinct offenses in one indictment against the same person was
fully examined in
Pointer v. United States, 151 U.
S. 396,
151 U. S.
400.
2. The paper presented by the defendant to the Third Auditor of
the Treasury of the United States in support of his claim against
the government, purporting to be the affidavit of Perry Ingraham
and Mary E. Ingraham, certified by Daniel H. Remington, as a
justice of the peace in Rhode Island, was admissible in evidence
without formal proof that Remington had been duly commissioned and
had duly qualified as a justice of the peace. Even if Remington had
not been properly commissioned, or had not qualified so as to
entitle him in law to discharge the functions of a justice of the
peace, the paper presented by the defendant to the Third Auditor of
the Treasury for the purpose of obtaining the payment or approval
of his claim, being in the form of an affidavit, must, for all the
purposes of this prosecution, be taken to be an affidavit. If he
knew that the statement in that paper, described in the indictment,
was fraudulent or fictitious, he was not the less guilty under the
second count because of the fact, if such was the fact, that
Remington had not been duly commissioned as a justice of the peace,
and was not for that reason entitled to administer the oath
certified by him. The essence of the offense charged in the second
count was the use by the defendant of a document or writing known
by him to contain a fraudulent or fictitious statement made to
secure the payment or approval of his claim. He is estopped to deny
that the document or writing so used was not what it purports to
be, namely, an affidavit.
Besides, the contention of the accused could not be sustained
even if the word "affidavit," in section 5438, were held to imply a
declaration or affirmation in writing, sworn to or affirmed before
some officer duly appointed, and having legal authority to
administer oaths or to take affirmations. It is not suggested, nor
could it be said, that Remington, if duly commissioned or appointed
a justice of the peace, was without such authority.
Page 155 U. S. 438
Pub.Stat. R.I. c. 23, § 9. But, having acted in that capacity,
the presumption will be indulged, nothing to the contrary
appearing, that he was duly commissioned or appointed to the office
whose functions he exercised. It was not necessary in the first
instance, in order to prove the offense charged, to produce his
commission or introduce other official evidence of his appointment.
Such is the general rule. It is one of public convenience, and of
longstanding.
Berryman v. Wise, 4 T.R. 366; 1 Greenleaf's
Ev. § 92; 1 Bishop's Cr.Pr. § 1130, and authorities cited; 1
Wharton Cr.Ev. § 833, and authorities cited;
Rex v.
Roberts, 14 Cox Cr.Cas. 101, 103;
Rex v. Howard, 1
Moody & Rob. 187;
Rex v. Verelst, 3 Camp. 432.
What has been said meets all the points suggested in the brief
of counsel for the plaintiff in error.
Judgment affirmed.