New-York daily tribune. [volume] (New-York [N.Y.]) 1842-1866, 1866-02-07
THE ALLEGED CUsTOM'HOCsh
PORGERrEs.
Opinion Of Judge shipman-Ihe i""'o
nseus Quashed-No Law 10 He"e" '"'
Foroery Of Custom House B0nds'


nm the motion 10 quash the Indictment against Wm
e Barney and others, holding that there 10 no law 10
reach the ofense with which they are charged or 10
punish those who may be guilty OF H.
The following is his opinion;
sVryvhv J-Tbe defendants in this case stand
Indicted for the crime Of forging and utterlne a
era, false and fraudulent bond within the precincts
Of the Custom House in this city The bond in question
purpos be given 10 the United States IN pursuance
Of Jegnlati0ns established by the Secretary OF the
Treasury under the authority Of that part OF the SXt
first Section Of the internal Revenue Act abpro,eId
June 80 1864, relating 10 the eXporatlon OF us' nv.
spirits, &C The amount OF The bona Is SOL ;. nf
conditions relate TO the expectation OF quahui vi
alcohol alleged therein 10 about TO be exported from
kewYork 10 HavTe and require that eeTtincales anu
pther nreo required by the Treasury regulations OF the
andhc of he article at the latter port should be pro:
duoed 80 the proper officer within one year OF
ne date of the bond; and that the article ,Nde
vithip the United States. The bond was to be VOID
the performance of the eonGions otherwise 10 re-
main IN force.
The Government claims 10 have conclusive proof that
tie bond forged and fraudulent, and that 1t was
made and uttered by these defendants for the purpose
Of defrauding the United States The Grand Jury have
indicted them. and now, before plea they move 10
quasi the indictment upon various grounds. g..
In order 70 properly notice the questions raised IL
will be wei here to refer 10 the two prhclpal ieatIr
Of the indi oment and the particular laws upon "Deh
II is founded. The indictment has two COUNTS tne
rst for forging the bond and me second Ior ~ hc
The first is founded upon tie thrd section OF ine
Grimes act of 1875 L. ;. Stats at Large. 40 IN
connection with certain law or laws OF The state OF
New.York which were in force in that State at the
date Of the passage Of the act Of Congress.
The second counts founded upon the act OF Congress
Of March g. 1893 L. 5. Stats. at Large section p
III This section relates, among other things, to the
forging false making and nttering OF certain nstr'
nents, with intent to defraud the United States.
IL will be convenient 10 frs: consider the points
raised on the motion touching the second count 1t Is
insisted that the first section Of the act Of 1923 has no
relation whatever TO the forging OF uteIng Of forged
instrument Of the character Of the in question ~
this point is well taken then the second count charges
Oense punishable by the courts Of the United States
and must therefore fall 1t is settled Law, unveT-
sally acted upon by these courts that they cannot re-
sort 10 the common law as source of criminal Juris
dicton However that body Of jurisprudence may
furnish the Federal courts with rules Of procedure,
definition. and construction these tribunals have no
power 10 Try eDy ofenses except such os are in some
form prohibited by the Constitution or by act Of Con
gress.
The section upon which the second counts founded
Dc IN the following words II any person SHAH falsely
make, alter forge or counterfeit or cause or procure
10 be falsely made altered forged, or c0unterteed
willingly aid assist 10 the false making, altering
forging or counterfeiting any deed power of attor
Dey order certificate, receipt or other writing for
Che purpose Of obtaining receiving or Of enabling any
other person persons. either directly Indirectly
10 ottaln OF receive from the United States, or any Of
TIER officers agents any sum or sums Of money;
cause to be uttered published true any such false,
forged altered, conIterfeed deed power Of attor
ney order certificate, receipt or other writing as
aforesaid, with intent TO deiraGd the United States,
moving the same TO be false forged altered or coun-
tefeited or shall transmit to- present at cause. or
TO be transmitted presented at office
officer Of the Government Of the United States
deed power Of attorney order certificate, receipt
Other writing Ill support Of OF IN relation TO any ac
count or claim, with intent 70 Gefrand the United
Staes, knowing the same 10 be false fol ged, altered
or eoulteTfe!ted eyerv such peysop shall be deemed
anu adudged guilty Of felony and being thereof duly
convicted, shall be sentenced 10 imprisonment and kept
at hard labor for period not less than one,
than ten years; or shall be imprisoned not exceeding
i've years and fined not exceeding one thousand dol
The foregoing section may be properly divided into
three parts The FIRST refers to the false making forging
or altering writing for the purpose OF obtaining any
money Of The United States the second for utieTng
tuch false forged. or altered writing with intent Il
defraud the United States; and the third TO the pre-
sentation at transmission any office or officer o.
the United States false forged or altered writing
In support Of or in relation 10 any account or claim
with intent 10 defraud the United States. The FRS
branch does not count IN express words upon guilty
knowledge or an intent to deifaud the United States
the orger for the very obvious reason that the abca
ton OF the instrument for the purpose OF obtaining
money OF the United States Etotssorty implies both
No person could Go the act prohibited without both
guy knowledge and an inten. TO defraud the Govern
ment. The second branch Of the section expressly
counts upon both guilty knowledge and guilty in
tent 10 defraud the United States, because might
possibly utter as true by passing 70 another an instIu
ment which lad been originally framed 10 procure
money OF the Government knowing Of its character,
with guilty intent 10 defraUd the person TO whom II
was thus passed, Circumstances might be such TO
exclude the idea that the passeT had any ineut OF
leotation that the United States would be deifauded
but only that the individual receiving Tie false writing
would Be cheated This might occur when the false
whiting had already been rejected by the Government
when the money sought to be obtained had already
been paid TIis guilty intent would be reached by the
State law. Tie object Of this with many Of the
ciminal statutes Of the United States Is to punish
frauds on the Government and lot frauds on ind.
yidUals. But it, with knowledge OF the false character
OF the writing one should utter IT, with intent TO defraud
the Government then, and not I'LL then all the ele-
Dents Of crime against the United States would be
embraced in the act OF uteriDg u therefore became
Necessary in iraming The act, 10 supply by express
word the Indispensable features CT the crime Of utter.
ing which that Of forging necessarily implied. This
explains the reason WHY the phraseOOgy Of the second
full IN descriptive than the first part Of
the section The terms "foI the purpose Of obta nil
or receiving any sun or sums Of money descriptive
O the character Of the instrument wei the intent
Of the fsbtea,or The OF the instrument and s
relation 10 the end in view, must be- IN degree IN
harmony With the object which the offender seeks
obtain This 10 the class Of writings with which
the first clause OF the section deals 1t against the
DerDg Of such writings that the second clause 10
eled. The first clause Furnishes the forging altering
Of the same kind OF instruments Of which the second
olause punisbiDg the uttering. Otherwise the word
"ssoh" in the statute has no meaning That il does,
however have meaning and was not clerical error,
word loosely and inaptly thrown H. is evident
inspecting the third clause Of this section In that
the word such is dropped and the Of any
writing in support Of or in relation TO- any claim or
account with intent 10 defraud the United States,
knowing the false and forged character Of the writing
10 made ofense II makes 10 difference whether the
account or claim IL against the United States in lie
favor and against an individual. The forged false
paper may be for the enhancement support OF claim
against the Government or II may be for the reduction
or e1tingnislment OF claim IN its favor against
individual In either case if transmitted with guilty
knowledge and intent il is a crime Of the same grade
and liable TO the same penalty original forgery
Inc OBJECT OF The offender might be not TO obtain money
but 70 AVOID the payment o. money, acts which in
highly penal statute, require 70 be distinguished by
pam and unambiguogs terms. The word such ["
therefore waf dropped in this last clause of the act
because its use would carry with il the words OF the
trst clause for thepurpose obtaining and receiving
any sum oI sums Of money Of the United States and