the court instructed the jury that unless they should believe from the evidence that the note passed by the defendant was in fact false and counterfeit, and known by him to be so, and that it corresponded with that set out in the indictment, in the names of the cashier and president, so far as that there was not in the one any letter added or omitted which would vary the sound of the name; and that the note, so passed, had upon its face the letters "No." prefixed to the second 15,402 as set forth in the indictment, then the jury ought not to find the traverser guilty. Ibid.

IV. DEFRAUDING THE GOVERNMENT.

[See §§ 237, 253]

$308. False claim for bounty land. By the act of March 3, 1823, which provides that if any person shall transmit to, or present at, or cause to procure to be transmitted to, or presented at, any office or officer of the government of the United States, any deed, power of attorney, order, certificate, receipt, or other writing, in support of, or in relation to, any account or claim, with intent to defraud the United States, knowing the same to he false, altered, forged, or counterfeited, every such person shall be deemed and adjudged guilty of felony," it was the intention of congress to embrace all claims, whether for land or money, and the act embraces a claim for bounty land. United States v. Wilcox,* 4 Blatch., 385. $309. An indictment under the above act need not state all the facts necessary to be established in order to entitle a party to the bounty land claimed in the application alleged to have been supported by false papers. Ibid.

$310. To an indictment grounded upon the act of March 3, 1823, and charging the defendant with transmitting false papers to the pension office, in support of an application for bounty land, under the ninth section of the act of March 3, 1855, a demurrer upon the ground (1) that the act could not be extended to the case of an application for a bounty land warrant; (2) that the papers alleged to contain false statements were not such as were enumerated in the act, but were merely declarations and affidavits subscribed an i sworn to by the signers; (3) that no offense was charged to have been committed in the district of Vermont, but only an offense in the District of Columbia, was overruled by the court. United States v. Bickford,* 4 Blatch., 337.

$311. Under the act of March 3, 1823, making it an offense for any person to transmit, or cause or procure to be transmitted to or presented at any office of the United States any false papers, with intent to defraud the United States, it is not necessary that one indicted for transmitting false papers to the pension office, in support of an application for bounty land, should have actually transmitted the papers. It is an offense to procure such papers to enable another to transmit them. Ibid.

$312. Making a claim against the government under Revised Statutes, 5438, consists in asking or demanding payment from the government for services. The object of the statute is to prohibit and punish the drawing of money from the treasury of the United States without having rendered legal and recognized equivalents. United States v. Bittinger,* 21 Int. Rev. Rec., 342.

66

$313. The words false," "fictitious,” and “fraudulent,” as used in Revised Statutes, 5488, have no special legal signification, but are to be taken as commonly used. The word "knowing,” as there used, means having a clear perception of the falsity of the claim made. Ibid.

$314. Where an officer of the treasury department is accused of fraud, in obtaining, by drafts, from a navy agent, public money placed in the hands of the navy agent as navy agent, the fraud, if any has been committed, is a fraud upon the public. United States v. Watkins,* 3 Cr. C. C., 441.

$315. Place of commission of offense.- Where the defendant in Washington, D. C., in carrying out a plan to defraud the United States, fraudulently procures money from the treasury to be placed to his credit in the hands of a navy agent in New York, and draws a draft on this fund and has it discounted in Washington and receives the proceeds of the draft there, the offense is committed in Washington. But the offense is not complete until the draft is paid. Ibid.

$316. Under sec. 5438, R. S., forbidding and punishing the making and presenting of fraudulent claims against the government, or vouchers therefor, an indictment may be found against an offender in the district where the claims were actually made, signed and approved, and to consummate such making no presentation to the accounting officers of the government is necessary. Ex parte Shaffenberg,* 4 Dill., 271.

$317. False tokens or pretenses. The principle which, in transactions between individuuals, requires, in order to make fraud indictable as a public offense. that it should be committed by means of tokens, or false pretenses, or forgery, or conspiracy, does not apply to direct frauds upon the public. United States v. Watkins,* 3 Cr. C. C., 441.

$318. Where the defendant is charged with defrauding the United States by drawing a draft on a navy agent and procuring such agent to issue a requisition on the treasury covering the amount, the getting the money out of the treasury into the hands of the navy agent is a necessary link in the chain of means to accomplish the fraud; and if that single link is obtained by deceptive practices of the defendant, those deceptive practices are as effectual in constituting the offense as if every other link in the chain had been forged by the like deception. Ibid.

§ 319. It may be a fraud upon the United States for the fourth auditor of the treasury, by false appearances, to deceive a navy agent into the belief that he had authority to draw drafts on such agent to be paid out of the money of the United States, so as to induce the navy agent to pay such drafts, although the fourth auditor has no such authority, and although the navy agent, in paying the drafts, may act in his own wrong and without actual authority. If the fourth auditor has authority to direct such an appropriation, still he may do it in such a way as to deceive the agent, or otherwise to use such deceptive practices in regard to it, as to constitute the drafts a fraud upon the United States. Ibid.

§ 320. False or forged writings.- Section 1 of the act of March 3, 1823, punishing the false making, forging, or altering of any writing, for the purpose of obtaining any money of the United States; and the uttering of any such false, forged, or altered writing with intent to defraud the United States, is confined to instruments designed to obtain money from the United States, and does not apply to the uttering of a forged bond required by the regulations of the secretary of the treasury established in pursuance of the Internal Revenue Act of June 30, 1864. United States v. Barney,* 5 Blatch., 294.

$21. Under section 5418 of the Revised Statutes, which punishes the forgery of “any bid, proposal, guaranty, official bond, public record, affidavit, or other writing, for the purpose of defrauding the United States," the words "other writing" include an owner's oath required to be taken before the entry of goods at a custom house; also an importer's entry and an importer's bond. United States v. Lawrence,* 13 Blatch., 211.

$322. The act of March 3, 1823, providing that if any person or persons shall transmit to, or present at, or cause or procure to be transmitted to or presented at, any office or officer of the government of the United States, any deed, etc., or other writing in support of, or in relation to, any account or claim, with intent to defraud the United States, knowing the same to be false, etc., every such person, on conviction, shall be punished, etc., does not require the claim or account to be in favor of the person presenting the false writing in support of it. It applies as well to the guilty agent of the person in whose favor the claim or account is presented. United States v. Kohnstamm,* 5 Blatch., 222.

§ 323. The act of March 3, 1823, punishing the presentation at any office of the United States of any false papers in support of any claim, with intent to defraud the United States, is not repealed, as to offenses already committed, by the act of March 2, 1863, providing for the same offense, the offenses previously committed under the former act being saved by the language of the repealing clause of the latter, saving "all rights of suit or prosecution, under any prior act of congress, on account of the doing or committing of any act hereby prohibited." Ibid.

§ 324. Section 1 of the act of March 3, 1823, "for the punishment of frauds committed on the government of the United States," applies only to instruments altered or forged for the purpose of obtaining moneys from the United States or their officers or agents. It does not apply to an instrument forged for the purpose of obtaining a cession of land from the United States, or the confirmation of a claim to land alleged to have been granted by the Mexican government. United States v. Reese,* 4 Saw., 629.

§ 325. Fraud not sanctioned. Where the defendant, an officer of the government, is charged with defrauding the United States by drafts on a navy agent, the fact that the government has since allowed a credit to the navy agent for the amount of the drafts does not sanction the drafts, nor exculpate the defendant from the fraud. Nor will it exculpate him that the officers of the government have entered the amounts of these drafts as a charge upon the defendant. United States v. Watkins,* 3 Cr. C. C., 441.

326. The writing transmitted or presented, referred to in that part of section 3 of the act of March 3, 1823, punishing any person who "shall transmit to or present at, or cause or procure to be presented at or transmitted to, any office or officer of the government of the United States, any deed, .. . . or other writing in support of, or in relation to, any account or claim, with intent to defraud the United States, knowing the same to be false, altered, forged or counterfeited," need not be an instrument forged or counterfeited, in the technical sense of the term. A writing genuine as to its execution, but false as respects the facts embodied in it, is within the act. This clause in the section provides for a distinct and independent offense, and considerations founded on the structure of the whole section will not control the language used. United States v. Staats, 8 How., 41 (§§ 2542–44).

V. UNDER ELECTION LAWS.

[See §§ 231, 2500. Also CONSTITUTION AND LAWS, II, 2, and the index to that subject, title Suffrage.] SUMMARY- Disfranchisement under state laws, § 327.- Judges of election not liable if they act in good faith, §§ 328, 329.— Governor not an election officer, § 330.- Supervisor an election officer, § 331.- Unlawful commingling of spurious ballots, § 332.- Arresting a deputy marshal, §§ 333, 334.- Hindering and preventing voters from freely exercising their right to vote, $$ 335, 336.- Averment and proof as to the judges holding the election, § 337.

§ 327. State statutes disfranchising persons convicted within the state of an infamous crime, deemed by the laws of the state to be a felony, do not include persons thus convicted in the federal courts of a statutory offense. United States v. Barnabo, § 339, 339.

§ 328. Although section 5515 of the Revised Statutes makes the naked act of " neglecting and refusing to perform their duties," on the part of judges of election, a crime; and such judges become technically guilty of the offense when they neglect and refuse to receive the votes of persons entitled to vote at the election, yet the law disdains to punish an unlawful act done innocently, or ignorantly, or in good faith; and it is necessary to prove that the neglect and refusal on the part of the judges of the election were coupled with some wrongful purpose, motive or intention on their part. United States v. Foster, §§ 340-343. See § 368.

$329. The fact that judges of an election, indicted under section 5515 of the Revised Statutes for refusing and neglecting to receive the votes of persons entitled to vote at the election, acted upon the opinion of the judges of the county court in refusing the votes, is evidence of good faith, but cannot excuse them for "neglecting and refusing to perform their duty" with wrongful intent. Ibid. See § 368.

$330. The governor of a state is not an election officer, under section 22 of the act of congress of May 31, 1870 (16 Statutes at Large, 145), making it a crime for any officer of any election at which a representative or delegate in congress was voted for, to issue, among other things, any false or fraudulent certificate of the result of such election. United States v. Clayton, 344-348.

§331. A supervisor of elections appointed in pursuance of the act of congress relating to that subject, whose duty relates to the registration of voters as preliminary to the exercise by them of their right to vote, to be present at the polls during the time the votes are being cast, to engage in the work of canvassing the ballots, to personally scrutinize, count and canvass each ballot cast, and to remain with the inspectors and other officers of such election until the votes are canvassed and counted, and certificates and returns are wholly completed, is an officer of the election, within section 5515 of the Revised Statutes, punishing "every officer of an election" who neglects or refuses to perform any duty in regard to such election required of him by law. United States v. Fisher, § 349, 350.

$ 332. Under section 5511 of the Revised Statutes, declaring it to be an offense for any one "to interfere in any manner with any officer of such election in discharge of his duty," an in lictment which charges the defendant with an unlawful commingling of spurious ballots with the legal ballots, at an election of the kind referred to in the section, and that such unlawful commingling constituted "an unlawful interference with the judges of the election in the discharge of their duties," is sufficient. Ibid.

§333. A deputy marshal, assigned to duty at a polling place, arrested a man for attempting to vote illegally. Through the interference of a crowd the prisoner escaped, and the marshal drew a pistol, after being deprived of his cane. The defendants, police officers, then arrested the officer on the ground that he was committing a breach of the peace under the state laws. Held, that the defendants were guilty of an offense under the statutes of the United States. United States v. Conway, § 351-353.

$334. The question whether the party arrested had a right to vote or not, and the fact of the marshal's drawing a pistol, were not material. The officer was obstructed in the discharge of his duty. Ibid.

$335. Proof that, at an election for representatives in congress, the defendant, in company with others, in a room where the polls were opened, made an attack upon a line of voters waiting for the opportunity of casting their ballots for a member of congress, and drove them from the room with violence, under the pretext that certain other voters not in the line were excluded from the polls, and attempted to fasten the doors against their readmission, makes out the offense defined by section 19 of the act of May 31, 1870, punishing any person who shall, "by force, threats, menace, intimidation or otherwise, unlawfully prevent any

qualified voter from freely exercising the right of suffrage." "Unlawfully preventing a voter from freely exercising the right of suffrage" may be construed to mean "to unlawfully prevent him from voting," without making section 19 cover the same offense as section 4 of the same act defines in the words " preventing, hindering or obstructing a qualified voter from voting," since section 4 punished only the offense of hindering, preventing, etc., when done under color or pretense of some state law, and the act was amended by adding section 19, which was limited to offenses committed at an election for members of congress, and included all preventions, whether under color of state law or not. United States v. Souders, $$ 354-361.

§ 336. Under section 19 of the act of May 31, 1870, punishing any person who, at an election for representatives in congress, shall, "by force, threat, menace, intimidation or otherwise, unlawfully prevent any qualified voter from freely exercising the right of suffrage,” the voter need not be absolutely prevented from voting, and the hindrance need not continue during the whole day. Ibid.

§ 337. An indictment under section 19 of the act of May 31, 1870, for preventing qualified voters from voting at an election for members of congress, need not name the judges who held the election, nor is it necessary at the trial to show who the judges were. The certificate of the result of the election, required by law to be filed by the judges with the secretary of state, if offered in evidence by the government, and contradicts the oral proof as to who the judges were, does not affect the case of the government. If it comes from the proper custody it is conclusive; and if not, it has no force or effect. Ibid.

[NOTES. See §§ 362-372.]

UNITED STATES v. BARNABO.

(Circuit Court for New York: 14 Blatchford, 74-79. 1876.)

Opinion by BENEDICT, J.

STATEMENT OF FACTS. The accused is charged with having fraudulently registered at a registry of voters for an election for representatives in congress, he being at the time disqualified as a voter by reason of having been convicted of a felony. The conviction set forth is a conviction of uttering a counterfeited security of the United States, the offense being created by section 5431 of the Revised Statutes of the United States. A demurrer to the indictment presents the question whether the laws of the state of New York deprive of the right of suffrage a person who has been convicted, in a court of the United States, of an offense against the United States, of the character described in section 5431 of the United States Revised Statutes.

§ 338. The statutes of a state disfranchising persons convicted of infamous crimes do not embrace cases of persons convicted in federal courts of offenses created by statute.

The question is new in this court, and I have not been referred to any case where the question has arisen in the courts of the state. In order to a proper understanding of the statutory provisions in the laws of the state of New York, bearing upon the question, mention must be made of the following provisions in those laws. According to the provisions of section 25 of the act of April 17, 1822, no person was allowed to vote who had been "convicted of any infamous crime." In 1823 the second constitution of the state took effect, and gave authority to pass laws "excluding from the right of suffrage persons who have been, or may be, convicted of infamous crimes." In 1828 the Revised Statutes of the state (1 R. S., 127, § 3) excluded from the right of suffrage every person "convicted within this state of an infamous crime," "unless he shall have been pardoned by the executive, and, by the terms of such pardon, restored to all the rights of a citizen." In order to prevent infractions of this law, further provision was then made (1 R. S., 135, § 21), that, "if any person so convicted shall vote at any such election, unless he shall have been pardoned and restored to all the rights of a citizen, he shall be deemed guilty of a mis

demeanor," etc.

An original note of the revisers to chapter 6, title 4, article 2, section 10, says: "The act of 1822, section 25, provides that no person who has been convicted of an infamous crime shall be permitted to vote, but it does not point out any mode in which a challenge for that cause shall be determined. Parol evidence of the fact of conviction ought not to be received; nor ought the oath of the person challenged to be demanded. The revisers have, therefore, in the above section, required the production of the record; though it is worthy of consideration whether such a regulation would not make the exclusion, to all practical purposes, a nullity. Perhaps a list of the convicts might be annually furnished to the town clerks, and be made evidence in cases of this sort." On the 5th of April, 1842, a substitute for chapter 6 of part 1 of the Revised Statutes was enacted, in which it was provided (title 1, § 3) that "no person who shall have been convicted of an infamous crime deemed by the laws of this state a felony, at any time previous to an election, shall be permitted to vote thereat, unless he shall have been pardoned before or after his term of imprisonment has expired, and restored by pardon to all the rights of a citizen."This provision is still in force, and the question in hand depends upon the effect to be given to this statute of the state.

§ 339. An offense created by an act of congress cannot be said to be deemed "by the laws of this state a felony." The disfranchisement by the laws of New York includes only persons convicted of infamous crime by the courts of that

state.

It will be noticed that the language of the original act of 1822 is sufficiently broad to cover all convictions of any infamous crime, wherever had. The Revised Statutes added, in express terms, the limitation that the conviction must have occurred "within this state," anl, by implication, the further limitation. that it must be a conviction in the courts of the state. This implication appears to arise out of the exception as to persons "pardoned by the executive, and, by the terms of such pardon, restored to all the rights of a citizen." The executive of the state only can be referred to here, as no pardon issued by the president of the United States would, by its termns, restore a person to the rights of a citizen of the state of New York. It would appear, therefore, proper to construe the statute as referring to those crimes only that can be pardoned by the governor of the state. Furthermore, such appears to have been the understanding of the statute by the revisers themselves, as their note above referred to shows. For, the remedy proposed by them in the note, while sufficient, if only convictions in the courts of the state are within the scope of the statute, is wholly insufficient if the statute includes convictions in the courts of the United States. The limitation which thus appears in the Revised Statutes is more plainly seen in the enactment of 1842, for while, in that act, the exception as to persons pardoned is substantially the same as before, the disqualifying clause requires not only that the conviction shall be of an infamous crime, but that it shall be of a crime "deemed by the laws of this state a felony." This statute requires not only that the crime be of the class of infamous crimes, but, also, that it be such a crime as, by the laws of the state, is declared to be a felony. The courts of the United States take cognizance only of statutory offenses against the United States, created by the laws of the United States, and I doubt whether it can be said that any mere statutory offense, created by a law of the United States, is "deemed by the laws of the state a felony." It has been contended that the word "deemed," as it is used, shows an intention to include all crimes presenting the feature designated by