1. That part of Rev.Stats. § 1044, as amended November 17, 1921,
which provides a six-year period of limitation "in offenses
involving the defrauding or attempts to defraud the United States"
does not apply where such fraud is not an element of the offense as
defined by the penal statute on which the indictment is based. P.
271 U. S.
202.
2. The Act of July 5, 1884, as amended, and Rev.Stats. § 1046,
fixing limitations for offenses arising under the internal revenue
laws, do not apply to perjury under Criminal Code, § 125. P.
271 U. S.
203.
3. Section 125 of the Criminal Code, defining perjury, does not
make intent to defraud the United States an element of the crime.
Id.
4. Therefore, a prosecution for perjury under § 125 is subject
to the three-year limitation of Rev.Stats. § 1044, and is not made
subject to the six-year limitation by allegations of the indictment
showing that the false oath was made in an income tax return for
the purpose of defrauding the United States.
Id.
Affirmed.
Error to a judgment of the district court quashing a count
charging perjury upon the ground that prosecution was barred by
statute of limitations.
Page 271 U. S. 202
MR. JUSTICE BUTLER delivered the opinion of the Court.
Defendant in error was indicted November 5, 1923. The first
count alleges the commission of perjury on March 13, 1920, more
than three years before indictment. The district court quashed that
count on the ground that the prosecution was barred by the statute
of limitations. The case is here under the Criminal Appeals Act of
1907, c. 2564, 34 Stat. 1246.
The count charges "the crime of perjury as defined by § 125 of
the United States Criminal Code." That section provides:
"Whoever, having taken an oath before a competent tribunal,
officer, or person, in any case in which a law of the United States
authorizes an oath to be administered, that he will testify,
declare, depose, or certify truly, or that any written testimony,
declaration, deposition, or certificate by him subscribed, is true,
shall willfully and contrary to such oath state or subscribe any
material matter which he does not believe to be true, is guilty of
perjury. . . ."
35 Stat. 1088, 1111. The substance of the charge is that
defendant in error on oath stated that the income tax due from S.
Noveck & Co., Inc., for 1919, was $1,484.84 on an income of
$16,251.66, whereas in fact the tax due was $45,664.91 on an income
of $124, 127.13. And it is alleged that the perjury was committed
"for the purpose of defrauding the United States."
Section 1044 of the Revised Statutes, as amended by the Act of
November 17, 1921, c. 124, 42 Stat. 220, provides:
"No person shall be prosecuted, . . . for any offense, not
capital, except as provided in § 1046, unless the indictment is
found, . . . within three years next after such offense shall have
been committed:
Provided, however, that in offenses
involving the defrauding or attempts to defraud the United States .
. . , the period
Page 271 U. S. 203
of limitation shall be six years."
The amendatory act added the proviso. Section 1046, Revised
Statutes, declares that no person shall be prosecuted for any crime
arising under the revenue laws unless the indictment is found
within five years after the committing of such crime. Act July 5,
1884, c. 225, 23 Stat. 122, as amended by Revenue Act 1921, c. 136,
42 Stat. 227, 315, fixes a three-year period of limitation for
offenses arising under the internal revenue laws of the United
States. Section 125 of the Criminal Code, under which the
indictment was found, is not a part of and does not refer to the
revenue laws. The limitations fixed in respect of offenses arising
under those laws do not apply.
See United States v.
Hirsch, 100 U. S. 33;
United States v. Rabinowich, 238 U. S.
78.
Plaintiff in error contends that, as the perjury in this case is
charged to have been committed in the making of an income tax
return, and is specially alleged to have been committed for the
purpose of defrauding the United States, the offense is brought
within the proviso to § 1044, and that the six-year period of
limitation applies. But the alleged purpose to defraud the United
States is not an element of the crime defined in § 125, on which
the indictment is based. That allegation does not affect the
charge; it need not be proved, and may be rejected as mere
surplusage.
In re Lane, 135 U. S. 443,
135 U. S. 448.
The construction of §§ 125 and 1044 contended for by the government
divides perjury into two classes. It makes one include offenses
having the elements specified in § 125 and the other to include
those containing the further element of purpose to defraud the
United States. And that would apply similarly to every offense to
which the three-year period fixed by § 1044 was applicable before
the proviso was added. The effect is to create offenses separate
and distinct from those defined by specific enactments. Obviously
that was not intended. The Act of
Page 271 U. S. 204
November 17, 1921, merely added a proviso to a statute of
limitations. Statutes will not be read to create crimes, or new
degrees or classes of crime, unless the purpose so to do is plain.
The language in question does not require the construction
contended for. Indeed, it is not all appropriate for the making of
such classifications or the creation of offenses. Its purpose is to
apply the six-year period to every case in which defrauding or an
attempt to defraud the United States is an ingredient under the
statute defining the offense. There are several such offenses.
Section 37 affords an illustration. But perjury as defined by § 125
does not contain any such element.
Judgment affirmed.