Evening star. [volume] (Washington, D.C.) 1854-1972, 1894-12-04
Judge McComas Decision on the
Howgate Objections.
THOSE ON THE FORGERY SUSTAINED
But Those in Regard to EmbezzIe-
ment Overuled.
ABSTRACT OF THE OPINION

dictmentS returned against MIN thirteen
years ago. Four of the indictments al
| legged forgery. the others charging en-
| bezzlement. Judge McComas sustained the
demurrers in the forgery cases, but over
| ruled those in the embezzlement cases.
In making this decision Judge McComas
| spoke as follows:
The Indictments for Forgery.
There are four Indictments of the de-
| PENDENT, Howgate, for forgery. Each Of
| these indictments contains four counts.
| The first three indictments. Nos. 14.O7o.
| 14,O71 and 14.O72 are alike, except as to
date and paper therein described. The first
| count in each AYERS that Henry W. How
gate did feloniously, falsely, make, alter,
forge and counterfeit, and cause and pro-
cure to be falsely made, ETC., and willfully
aid and assist in falsely making. ETC., a GER
tain paper purporting to be an account
and a receipt the paper being inserted in
fulD with intent to defraud the United
States.
1.-The second count AYERS that Howgate
did pass, alter and publish as true a GER
tain false, forged and counterfeited paper,
partly In writing and partly in print pur-
porting to be an account against the
United States, and a receipt of the same
land again the paper is set out in fulD
knowing the same to be so falsely made
ETC., and with intent to defraud the United
States.
The third count AYERS that Howgate
having in his custody and possession a
certain paper purportiEg to be an account
against the United States (the paper is set
cut in fulD unlawfully and feloniously did
forge and counterfeit, and cause and pro-
cure to be forged and counterfeited q re-
ceipt for the amount of said pretended ac-
count against the United States (the paper
being again inserted with intent to de-
fraud the United States.
THE fourth count AYERS that Howgate
06 nd ASsin
per purporting to be an account against
the United States (the paper being set out
In fulD afterward did unlawfully and fe-
loniously forge and counterfeit the name
of K. III. Rochester. treasurer of the West
ern Union Telegraph Company, to a re-
Ceipt attached to said paper in the form
of an account the paper being inserted in
fulD with intent to defraud the United
States.
1.-The Indictment No. 141O8 contains four
counts, and the first, third and fourth
counts substantially make the same aver
meDts, as are made in the first, third and
fourth counts in the first three indict-
ments. Each set forth an alleged account
and receipt, and the name alleged to be
forged is that Of II. d. Sayre. The second
count is admitted to be bad because it
omits the essential ingredient that the de-
PENDANT altered the paper knowing the
same to be falsely made, altered, forged
and counterfeited.' Each Of these indict-
ments contains a sufficient averment of
cludes against the form Of the statute.
Demurrer Sustained.
1.-The demurrer to each count of each in
dictment must be sustained, because all
are bad. The first count in each indict-
ment appears to charge several distinct
offenses, and to charge each of them in
sufficiently. Among other errors it AYERS
that the defendant altered the paper, but
To ctota ha oil md cafc
forth the paper without the alteration.
THE offenses at which the statute is aim
ed are similar to the common law Of
lenses of forging and altering forged
paper. Had the pleader regarded this con-
slderatiOn, other errors in these courts
might have been avoided. 1t is not neces
sary to comment on such errors in the diff
ferent counts, because there Is one fatal
omission of an essential element of the
crime from each of them. 1t is clear to
the court that each of these indictments
is based upon section 1857, Revised Stat
utes of the District of Columbia. There
fore. each count of each Indictment is fatal
ly defective by emitting to aver that the
alleged forging altering was to the
prejudice of the right of any other person,
body polite or corporate, or voluntary
association This statute makes neces-
sary the averment that the specified forg-
ing or altering was to the prejudice of the
United States or to the prejudice of some
person named in the indie tment"
The court then Celebrates on the defects
and says:
Il am constrained by the many defects
of the indictments for forgery the same
being numbered respectively 14,070, 14,O71,
14OI2 and 14,O76.
The Indictments for Embexzlement.
There are seven Indictments Of this de-
PENDANT Howgate for embezzlement, name
ly, 14,069, containing seventy-four counts;
14,1O1 and 14,105, each containing two
counts; 14.1OO. IA. 1902. IA, 1O3 and IA, 10I each
containing one count.
Except the difference of date of the al
legged offense and the amount Of money
mentioned these counts are each like every
other.
Therefore in considering the demurrers
to these indictments for brevity speak Of
all of them as one Indictment.
This indictment is not skillfully framed,
but 1t embodies the language Of the stat
ute: 1t charges every element of the Of
Tense created by the statute with sufficient
certainty, and gives the defendant clear
notice of the charge he Is called on to
defend" He then proceeds to analyze the
Indictments and then says:
Counsel for the defendant insists that
this indictment is bad, because the aver
ment that the defendant did unlawfully,
willfully and feloniously convert to his own
use is too general and indefinite. 1t is
urged that the indictment must state how
the conversion was made; that the mode of
the conversion must be set out, because
the meaning of the statute is that the
punishment prescribed shall follow when
the conversion is fraudulent or to the in
jury of the United States; or at least with
intent to fnture, or defraud the govern
ment; that this Indictment fails to state
any of these essential facts, and fails to
state anything but q naked legal con-
clusion; that 1t does rot set out the facts
from which the court may see whether the
conclusion is correct Embezzlements by
public officers are punishable under stat
uteS which are not always quite the same
in terms with those against private en-
beZZlementS. Section 54SS does not make
the embeZzlement therein defined larceny
so as to compel the pleader to weave into
an Indictment on this statute the larceny
element. The single statutory verb did
embezzle' sufficiently indicates the GRIM
inal act, for in such statutes it Is q word
of settled technical meaning.
This onense of embeZZlement by a dis
bursting officer Is purely statutory, and has
no relation to the common law, and it Is
sufficient to charge the defendant with
acts coming fully within the statutory de-
scription in the substantial words of the
statute, without any further expansion of
the matter provided the indictment also
apprises the accused with reasonable GER
tainty of the nature of the accusation
against him, to the end that he may pre-
pare his defense and plead the Judgment
In bar to any subsequent prosecution for
the same offense.
CoufeDtt0ns of Counsel