United States v. Crafton

DILLON, Circuit Judge. The indictment is founded upon section 5440 of the Revised Statutes, which is as follows: “If two or more persons conspire * * to defraud the United States in any manner, or for any purpose, and one or more of such parties do any act to effect the object of the conspiracy, all the parties to such conspiracy shall be liable to a penalty of,” etc. The nature of the acts charged against the defendants in the indictment, are more fully 682 seen by reference to the act of the legislature of Missouri, approved March 19th, 1874. entitled “An act to audit and adjust the war debt of the state.” Laws 1874, p. 102. !j 10 et seq. The claims' “of officers and soldiers of the enrolled Missouri militia” were primarily, and, until assumed by congress, exclusively, against the state, and not against the general government. The latter has never assumed their payment. If. at the time that the acts set forth in the indictment were done, the general government had provided for the payment of such claims out of its own treasury, undoubtedly those acts, fraudulent in their nature and object, would have been criminally punishable. It is just at this point that the case stated in the indictment is vulnerable Under the recognized rules of criminal pleading, it is not sufficient to allege generally a conspiracy to defraud; but the nature of the fraud, and, to the required extent, the manner in which, or the means by which, it was to be effected, must be averred. U. S. v. Cruikshank, 92 U. S. 542, 558. In the case at bar, this has been attempted by the pleader, but the difficulty is that, it appears from the averments, the alleged conspiracy to defraud the United States was, under the existing legislation of congress, legally impossible of execution. The fraudulent muster and pay-roll was transmitted to the third auditor to be filed, to await the passage of an act of congress which should provide for the payment of the fraudulent claims contained therein. It was not filed as an existing .claim against the United States;- on the contrary, the debt to the persons named in the roll was the debt of the state, and would remain such unless congress should assume it. It could not be known that such assumption would ever be made, or, if made, that the said rolls would have any legal significance or value. However fraudulent in ulterior design, or morally reprehensible the acts charged in the indictment may be, still our judgment is that section 5440 of the Revised Statutes cannot be extended to a case where the fraud which the conspiracy contemplated can only be effected in case an act of congress shall be thereafter passed of a nature to fit the prior conspiracy and give it something to feed upon. The demurrer to the indictment must be sustained. Judgment accordingly.