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house officer, the merchant who conspires with him, when there are only two conspiring, shall be free from punishment as a conspirator. Therefore, at least for these motions, we cannot give that proposition effect, and all the motions are overruled.

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(District Court, E. D. Missouri, E. D. June 15, 1904.)


The forgery of an affidavit by a pensioner, to be used in contesting his deserted wife's claim for one-half of his pension, as authorized by Act March 3, 1899, c. 460, § 1, 30 Stat. 1379 [U. S. Comp. St. 1901, p. 3288], is not an offense within Rev. St. U. S. § 5421 [U. S. Comp. St. 1901, p. 3667], providing that any person who falsely forges any writing for the purpose of obtaining or receiving, or enabling any other person, directly or indirectly, to receive, from the United States, any sum of money, shall be imprisoned, etc.

Motion in Arrest of Judgment.

D. P. Dyer, U. S. Dist. Atty.
J. J. Howard, for defendant.

ADAMS, District Judge. The accused was indicted under the provisions of section 5421 of the Revised Statutes of the United States [U. S. Comp. St. 1901, p. 3667], which reads as follows:

"Every person who falsely makes, alters, forges, or counterfeits

any deed, power of attorney, order, certificate, receipt, or other writing, for the purpose of obtaining or receiving, or of enabling any other person, either directly or indirectly, to obtain or receive from the United States, or any of their officers or agents, any sum of money, shall be imprisoned,"


He was tried, and found guilty as charged.

The particular charge laid in the indictment against the accused is that he forged an affidavit by signing the name of Alvin G. Burkey to it, and, after so doing, forwarded the same to the Commissioner of Pensions at Washington "for the purpose of obtaining from the United States a sum of money, to wit, the sum of $12 per month." From other averments of the indictment it appears that the accused, Swan, was a pensioner of the United States, receiving a fixed pension of $12 per month; that Martha J. Swan, his wife, pursuant to the provisions of the act of March 3, 1899, c. 460, § 1, 30 Stat. 1379 [U. S. Comp. St. 1901, p. 3288], presented her claim for one-half of her husband's pension on the alleged ground that she had been deserted by him, and was of good moral character, and in necessitous circumstances; and that, while her claim was so pending before the Commissioner of Pensions, Swan made and used the forged affidavit set out in the indictment by way of resisting or defending against the claim of his wife. The motion in arrest, now under consideration, raises the question whether the making and using of the forged affidavit for such a purpose is within the comprehension of section 5421, supra. The indictment discloses that Swan's imme

diate purpose was to make use of the forged writing to prevent his wife's obtaining one-half of the pension, which had already been allowed to him. It is contended by the United States attorney that the effect of his act was to enable him to continue to draw the whole amount of his pension which had been theretofore granted to him. The argument is that, if he could defeat his wife's claim, he would thereafter collect it all as he had done theretofore, and, for this reason, that the use of the forged writing to defeat her claim was, in effect, the use of the writing to obtain the money himself. The offense denounced by section 5421 obviously is the making of the forged writing in aid of a claim against the United States, with the purpose and intent of thereby obtaining for the claimant, or some other person, a sum of money from the United States. The forged writing must have such direct relation to the object to be accomplished as to evince an intent or purpose on the part of the forger to thereby obtain money. The gist of the offense is as much the wrongful obtaining of the money as the forgery of the means to do so. Both of these elements must concur to constitute the offense. The forged writing must obviously be the means whereby the money was intended to be secured. In the light of these obvious reflections, what does the indictment disclose? Swan's real intent and purpose was to prevent the United States from paying money to his wife. She was making a claim for it, and he, instead of aiding her, was resisting the claim made by her. He was making no claim against the United States for himself. His right had already been established. At the worst, his remote intent and purpose was to defend and protect an existing right of his own, and not to extract any more money than was due him, but to prevent its division with his wife. This remote intent and purpose is not, in my opinion, the proximate actuating intent and purpose denounced by the statute in question. A penal statute should not be extended by implication. As said by a distinguished English jurist: "It would be exceedingly wrong that a man should, by a long train of conclusions, be reasoned into a penalty, when the express words of the act of Parliament do not authorize it." Rex v. Bond, 1 B. & Ald. 392. "Penal statutes are not enlarged by intendment, and acts not expressly forbidden by them cannot be reached merely because of their resemblance, or because they may be equally and in the same way demoralizing and injurious; * nor can a statute be extended beyond its grammatical sense or natural meaning by any plea of failure of justice." Sutherland on Statutory Construction, §§ 352, 355, and cases cited. The plain and natural meaning of the language employed in section 5421 is, in my opinion, to prevent the making or using of a forged writing in asserting a claim against the United States for the purpose of obtaining money on that claim, and it would, in my opinion, be a strained and unwarranted construction of this highly penal statute to hold that a forged writing made to resist a claim asserted against the United States would fall within its comprehension merely because the ulterior effect of the claim, if successful, would prevent the forger from collecting from the United States an amount of money otherwise conceded to be due him. To extend the statute to cover such


a state of facts would involve a train of reasoning resulting in new legislation, rather than in the construction of an existing statute. This kind of argument might prevail in a civil action, but it is too indirect and forced for a criminal case.

The motion in arrest must be sustained.


(District Court, S. D. New York. June 9, 1904.)



Since a referee in bankruptcy is required not only to take evidence, but to determine issues of fact and law based thereon, he has power to exclude inadmissible evidence offered under objection.


A referee in bankruptcy, having power to rule on the admissibility of testimony offered before him, is bound to personally hear the evidence, unless his presence is waived by the parties.

In Bankruptcy.

Morris J. Hirsch, for Bennett & Co., creditors.
Smith & Bowman, for trustee.

HOLT, District Judge. This motion involves the question whether a referee in bankruptcy has any power to exclude evidence. As I understand it, an officer appointed to simply take testimony for the use of the court-as, for instance, an examiner in an equity suit-has no jurisdiction to exclude or pass upon testimony. Unless the parties refer any question of the admission of testimony to the court, he is obliged to take all that is offered. But I think that whenever any officer is appointed whose duty it is to take evidence, and also to exercise any judicial duty in regard to it-as to decide issues or to state the facts or law in an opinion or report—it is his right and his duty to exclude inadmissible evidence upon objection. Why should he admit evidence which it would be his duty to disregard if admitted? Substantially all the cases in which evidence is taken by referees in bankruptcy, either in their character as referees or as special commissioners, are cases in which they either decide questions outright, or draw conclusions from the evidence in the shape either of a report or an opinion, and I think that in all such cases the referee has the right to exclude evidence which he deems inadmissible. If error is committed by such exclusion, any party interested can take up the matter immediately on a certificate, or can urge the alleged error on final hearing. I am aware that there are authorities to the contrary for which I feel sincere respect, but none of them is necessarily controlling upon me, and I am not able to concur with them. The delay and expense of a bankruptcy system under which a referee has no power to exclude testimony, however irrelevant, is so great that such a method of procedure should not be permitted unless the principles of law absolutely require it. In my opinion, they do not require it in proceedings before referees in bankruptcy.

The determination of the question whether a referee in bankruptcy has power to pass upon testimony substantially determines the question whether he should be personally present when it is taken. Formerly examiners in equity suits usually took down the testimony in longhand, but under the modern practice the actual taking down of the testimony is usually performed by a clerk or stenographer. Under these circumstances, as the examiner has no power to rule upon testimony, the only substantial necessity for his presence is to administer the oath to the witness, and in actual practice it frequently occurs in such cases that, after administering the oaths, he does not remain personally present. But a judicial officer, who is to decide upon the effect of testimony, in my opinion, is bound to personally hear the evidence, if required by any interested party. A referee in bankruptcy, therefore, in my opinion, is bound to be personally present when evidence is taken which he is to pass upon, unless, in the case of purely formal evidence, his presence is waived.

I decline to make any direction in reference to closing the reference in this case. That matter is left to the discretion of the referee.


(Circuit Court, E. D. Pennsylvania. June 16, 1904.)

No. 20.


The president of a defendant corporation held guilty of contempt of court for violation of an injunction restraining the use by the corporation of a trade-name.

In Equity. On motion to revoke appointment of master, and motion to attach Joseph C. Henvis for contempt for violation of injunction.

See 128 Fed. 121.

A. B. Weimer, for complainant.

A. T. Johnson and Charles F. Warwick, for Jos. C. Henvis.

J. B. MCPHERSON, District Judge. Much as I should have preferred to profit by the report of a master on the motion to attach the respondent, Henvis, for contempt, I shall be obliged to forego that advantage. The complainant moves to revoke the order appointing the master on the ground that he has no further testimony to offer, and for that reason asks the court to dispose of the motion to attach upon the affidavits that have already been presented. Under these circumstances I think the motion to revoke should be granted, and, as this requires me to decide for myself whether a contempt has been committed, I have given the testimony careful consideration, making an especial effort to read it without bias or prejudice. I hope I may have succeeded, for my conclusion is adverse to the respondent. To my mind it is clear that he deliberately evaded and disobeyed the injunction order of February 26, 1904, by issuing the circular headed,

"We challenge the world," etc., if by no other act, and I am therefore obliged to adjudge him guilty of contempt.

It is accordingly ordered that the motion to revoke the appointment of the master be granted, and, after consideration of the affidavits heretofore submitted, the court does adjudge Joseph C. Henvis, the respondent, guilty of contempt in disobeying the injunction order of February 26, 1904, and as a penalty for this disobedience orders that he pay a fine of $100 and the costs of this attachment proceeding within five days from this date. In default of such payment the marshal is directed to take him into custody, and deliver him to the jail of Philadelphia county, there to suffer imprisonment for the period of 30 days.


(District Court, D. Massachusetts. June 20, 1904.)

No. 1,457.


That the master of a vessel failed to replace a second mate who had been paid off at an intermediate port, as required by Rev. St. § 4516 [U. S. Comp. St. 1901, p. 3071], was no excuse for the total refusal of members of the crew to work the vessel, and was therefore no defense to the master's right to punish them for their disobedience.

In Admiralty.

John J. O'Connor, for libelants.
Carver & Blodgett, for claimant.

LOWELL, District Judge. This was a libel to recover (1) damages for false imprisonment, and (2) wages.

1. The seamen libelants refused to work, and were put in irons until they were ready to obey orders. The imprisonment was justified, unless the refusal to work was justified. The libelants' counsel seeks to justify the seamen's disobedience by the master's alleged violation of Rev. St. § 4516, as amended by Act 1898, c. 28, § 1, 30 Stat. 755 [U. S. Comp. St. 1901, p. 3071], in that the vessel put to sea without replacing a second mate who had been paid off at Norfolk, an intermediate port. But, even if section 4516 applies to domestic vessels, and extends to the replacing of both officers and seamen, and though it be assumed that the master of the Cressy could reasonably have obtained a second mate at Norfolk (all disputable propositions), yet the master's violation of law does not excuse the crew's total refusal to work the vessel, either at Norfolk or after leaving that port. Hence the libelants have failed to prove any false imprisonment.

2. It follows that the master was justified in docking the crew's wages during their confinement, but, as he failed to comply with the provisions of Rev. St., § 4597 [U. S. Comp. St. 1901, p. 3115], I am disposed to mark my disapproval of this irregularity by disallowing the deduction.

Decree for balance of wages, without costs.

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