Noah v. United States

GILBERT, Circuit Judge, alter stating the case as above, delivered the opinion -of the court. AVe think it sufficiently appears from the indictment that the matters set forth in the affidavit were material to, and that the affidavit. was -made and sworn to on behalf of, the application of Frances A, Moon for a pension. It is true that in the heading to the affidavit, which was evident!}' a printed form, it appears that the name of the claimant for a pension was inserted as “Pardy Rosson Moon,” instead of “Frances A. Moon”; but the indictment elsewhere distinctly charges that on .March 18, 1897, there was filed, in the Pension Office at Washington, at the instance and on behalf of Frances A. Moon, her application to be placed on the pension roll of the United States as the widow of Pardy Rosson Moon, and that the plaintiffs in error, while said application was pending, for the purpose and with the intent of deceiving the' officers of the Pension Office, and “of unlawfully, improperly, and fraudulently obtaining the allowance of the said application, and the granting to her, the said Frances A. Moon, of a pension.” did appear before the notary named in the indictment and make oath to the affidavit. This shows the purpose for which the affidavit was made. The fact that by inadvertence the name of Pardy Rosson Moon was inserted in the blank as the claimant, instead of that of the applicant herself, is no proof to the contrary, and it does not have the effect to controvert or lessen the effect of any of the prior averments. It is true, also1, that in the affidavit the name of Frances A. Aloon is not found, and that the surviving widow of Pardy Rosson Moon is therein named as “Mrs. Moon.” It is argued from this that it does not appear from the affidavit that it was to he used on behalf of Frances A. Moon. But it is not necessary that the affidavit, by its terms, shall show for whose benefit it was intended to be used. It is enough if the indictment charges the fact to be that it was intended to be used in aid ,of the application of Frances A. Aloon. In view of these considerations, the statements in the affidavit, or some of them, at least, were material — -as, for instance, [272] the averment, “We do not think that Mr. Moon was ever married until he married the woman who is now his surviving widow,” and that Pardy Rosson Moon and Mrs. Moon were married about the year 1889, and the affiants were both present at the wedding. If the plaintiffs in error were guilty, as charged in the indictment, of making a false affidavit for the purpose of deceiving the Pension Office, and fraudulently obtaining the allowance of the application of Frances A. Moon for a pension as the widow of Pardy Rosson Moon, these aver-ments were material, as they stated that Pardy Rosson Moon married the woman “who is now his surviving widow,” and that the marriage took place in the year 1889. The affidavit contains further material information, in stating that Pardy Rosson Moon and Mrs. Moon were never divorced. It is contended further that the indictment is defective for the reason that it does not show, and it cannot be ascertained therefrom, whether the alleged false affidavit was ever used by or on behalf of Frances A. Moon in connection with her application for a pension. The answer to this is that section 5392 of the Revised Statutes [U. S. Comp. St. 1901, p. 3653], under which the indictment was drawn, does not require that, in order to predicate perjury upon its violation, the false affidavit shall have been filed or used. It is enough if it appear from the indictment that it was made with the intention and under the circumstances set forth in the statute. Section 5396 [page 3655] specifies the allegations which are essential to an indictment for perjury. Tested by those statutes, the indictment is clearly sufficient. United States v. Volz, 14 Blatchf. 15, Fed. Cas. No. 16,627; State v. Lloyd, 77 Wis. 630, 46 N. W. 898; State v. Whittemore, 50 N. H. 245, 9 Am. Rep. 196; State v. Geer, 46 Kan. 529, 26 Pac. 1027. We find no error in the rulings of the District Court. The judgment will be affirmed.