In Error to the District Court of the United States for the District of Massachusetts.

For opinion below, see 122 Fed. 738.

Heman W. Chaplin and Henry W. Dunn, for plaintiffs in error. Henry P. Moulton, U. S. Atty., and William H. Lewis, Asst. U. S. Atty.

Before COLT and PUTNAM, Circuit Judges, and ALDRICH, Dis*rict Judge.

ALDRICH, District Judge. This case, novel in its character and aspects, has been argued with marked ability and clearness on both sides. The statement of the case appearing in the record sufficiently presents the general situation to enable us to consider the questions involved under the assignment of errors. It is as follows:

"The indictment is for conspiracy against the United States, and sets forth that Hughes, desiring to procure an appointment as letter carrier, a position in the classified civil service of the United States, and for the purpose of procuring the placing of his name on the list of persons eligible to appointment as letter carriers, and for the purpose of defrauding the United States, unlawfully agreed with Curley that the defendant Curley should falsely impersonate Hughes at a civil service examination, and do all acts required by the board of examiners, and sign the name of Hughes to such examination papers as should be delivered to Curley for examination while he should personate said Hughes; that Curley, in pursuance of said conspiracy, did falsely and unlawfully gain entrance to an examination, and, for the purpose of defrauding the United States, did falsely make a certain writing known as a 'Declaration Sheet.' There are also allegations of presenting false papers to an officer of the United States.

"The indictment contains three counts: The first, a conspiracy to defraud the United States, under section 5440, Rev. St. [U. S. Comp. St. 1901, p. 3676]; the second, a conspiracy to commit an offense against the United States, to wit, an offense set out in section 5418, Rev. St. [U. S. Comp. St. 1901, p. 3666], to falsely make a writing for the purpose of defrauding the United States: the third, a conspiracy to commit an offense against the United States, the offense being under section 5418, Rev. St., to wit, to present a false writing to an officer of the United States."

The various counts of the indictment set out with particularity the object of the conspiracy, the means employed, and the acts done in furtherance thereof. The first count also sets out verbatim the application for examination, the regulation vouchers, three in number, the answers of which are required to be in the handwriting of the voucher, all of which purport to be signed by Hughes; and the second and third counts set out what is called the 'Declaration Sheet,' which purports in its phraseology and signature to be in the handwriting and upon the honor of Hughes, such examination papers being originally supplied, as is understood, by the government, and show some of the precautionary regulations of the civil service department of the government, designed for the purpose of ascertaining the qualifications of applicants for official position in the Post Office Department.

The case first came up for consideration before Judge Brown in the District Court upon general demurrer, wherein the point was taken that neither count of the indictment set forth an offense against the laws of the United States. The demurrer was overruled, and the defendants excepted. The case was subsequently tried before Judge

Lowell and a jury, the defendants were convicted, and after sentence the case was brought to this court by writ of error.

The assignments of error are based upon exceptions duly taken, and are against alleged error in overruling the demurrer to the various counts, and to alleged error upon the subsequent trial in refusing to grant the request for a ruling to the jury that there was no evidence to warrant a verdict of guilty, for the reason that the facts alleged and in evidence set forth and constitute no crime against the United States, and alleged error in refusing to rule that neither count of the indictment charged an indictable offense, for the reason that the facts alleged and in evidence set forth and constitute no crime against the United States. No point was taken at the trial that the proofs did not sustain the allegations of the indictment, or that the elements of the wrong complained of were not described with sufficient certainty and particularity to bring the indictment within the rule (United States v. Cruikshank et al., 92 U. S. 542, 558, 23 L. Ed. 588) which requires, where statutes use generic terms in declaring an offense, that the indictment must descend to particulars and describe the wrong. The sole or principal contention in that court was that the facts alleged did not constitute an offense within the meaning of the statute. And the principal contention of the defendants here is that the word "defraud," in its ordinary common-law acceptation, has reference to property and property rights, and the case largely, and perhaps wholly, depends upon the sense in which the word "defraud" was used in the statute under consideration. Was it intended to limit the scope of the statute to frauds upon property and property rights of the government, or was it intended to use the word in a broader sense, and for the protection of intangible rights, privileges, and functions of the government?

Speaking generally, the wrongs, whatever they are, contemplated by the second part of section 5440 [page 3676], under which the first count of the indictment was drawn, must relate to a purpose to defraud the government, and the false papers contemplated by section 5418 [page 3666] must have reference to a like purpose, and counts 2 and 3 are drawn upon that theory. This being so, the question of construction, raised under one section, in effect relates to the other, and the same is true as to the various counts, so far as we can see, and this is so because the purpose to defraud is an essential element of section 5418 and the second part of section 5440, as well as an essential feature of the various counts of the indictment.

Some stress has been laid upon the position, though it is not the main contention, that section 5440 of the statute should not be construed broadly in either of its aspects, but strictly. In support of this position. it is suggested that, if construed broadly, it will include offenses with penalties different from those of the statute in question. The answer to that particular argument, quite likely, is that, while the purpose of statutory laws describing particular offenses in respect to the various ramifications of the government deal with completed wrongs, the purpose of the statutes in question was to deal with wrong in its incipient stages. The case In re Coy, 127 U. S. 731, 8 Sup. Ct. 1263, 32 L. Ed. 274, involved a count based upon the first part of section 5440, and alleged a conspiracy to commit an offense against the United States,

which related to the federal election laws-an offense which was punishable by law-and the indictment was sustained. The case of United States v. Sacia (D. C.) 2 Fed. 754, involved an allegation of a conspiracy to defraud the government of its rights under a will, and while the expression in that case, that the statute in question doubtless intended to meet the party to the fraud against the government on the very threshold of the perpetration of the crime, may be too broad, we do not doubt the soundness of the general reasoning that the statute intended to make it an offense for two or more persons to conspire for an unlawful purpose, and, the purpose existing and some act being done in furtherance of the object, that the penalty attaches before a consummation of the conspiracy.

Upon this general aspect we accept the statutes in question as having a comprehensive purpose, that of declaring against conspiracy to commit offenses as well as all kinds of conspiracies to defraud the United States, and to punish such conspiracies when supplemented by "any act to effect the object of the conspiracy," though the wrong has not become effectual in its purpose.

Although the statute is accepted broadly as general and comprehensive in its terms, it being a penal statute, when questions are raised as to its applicability to a particular situation, such questions must be determined under the rules of strict construction. It does not necessarily follow, however, that rules of strict construction would operate to limit the general terms or the general purposes of statutes of this character, but, under å particular description of an offense, the wrong complained of must be found to embrace the elements of a wrong clearly within the meaning of the general terms and the general purposes of the statutes.

Another point urged against the government is that, as the statute upon which the indictment was founded is older than the statute which creates the right in respect to which the government claims to have been defrauded, the particular kind of wrong charged could not have been contemplated by Congress, or intended as within the terms of the statute. This, to our minds, is the most weighty argument advanced by the defense. The answer to it, however, is that Congress intended to protect the government in its rights, privileges, operations, and functions against all fraudulent operations,-impositions upon its rights as well as properties, and to this end employed the most general terms and the broadest possible phraseology and declared that "if two or more persons conspire either to commit any offense against the United States, or 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," they shall be liable, etc. The statute thus clearly and expressly carries its provisions beyond wrongs which had been expressly declared to be offenses against the United States, and extends its provisions so as to embrace fraud in any manner for any purpose, and it would thus seem apparent that it was intended by Congress to carry the meaning of the statute beyond frauds in respect to property and property rights by declaring against fraud for any purpose, and in so doing it must have been intended not only to meet present wants and conditions of the law in respect to statutory offenses

and wrongs and frauds in relation to then existing conditions of administration, but to provide for future statutory offenses and frauds and wrongs growing out of new conditions of the future.

Such being the intention, it becomes a question whether the statute legally operates upon conditions or upon rights in respect to the administration of government subsequently created. It is said in Wheeler v. Philadelphia, 77 Pa. 338, 349, "legislation is intended not only to meet the wants of the present, but to provide for the future. It deals not with the past, but, in theory at least, anticipates needs of a state, healthy with a vigorous development." At least the argument that the offense was not within the terms of the statute would not hold good in respect to property, upon the ground that the property or property right about which the government or an individual was defrauded through conspiracy was acquired subsequent to a statute declaring it to be an offense to defraud the government or an individual of its property through a conspiracy for such purpose.

If this be true as to property and property rights, which we assume, and if the statute in question is broad enough under fair and reasonable. construction to include rights, privileges, and functions in respect to governmental operations, it is difficult to see why, on the same principle, the statute does not apply itself to rights and privileges subsequently acquired or created in the course of legislative development in the interests of good government and improved service to the public. To illustrate, section 5451 of the same chapter of the federal statutes [U. S. Comp. St. 1901, p. 3680] makes it an offense to bribe any officer. of the United States, or any person acting for or on behalf of the United States in any official function. It is probably not to be doubted that a statute of this kind would operate upon an offender who should bribe the incumbent of a federal office created subsequent to the time when section 5451 became a law, and, in conclusion upon this point, it must be said that no difference can be seen in principle between such a situation and the one under consideration.

As a general proposition, it is no objection to a statute that it is general in its terms. It may be sufficiently comprehensive to include a whole subject, or it may limit itself to a class of wrongs relating to a subject, or to a single phase of a given subject. Where a statute is general, the wrong complained of must be particularly described, so that it can be determined whether it is within the meaning of the statute. The point is taken, however, that, as the great body of wrongs. and offenses against individuals and communities under our system of governments is left to be dealt with by the state governments, a federal statute drawn in general terms, if so general as to include offenses cognizable and punishable exclusively under the state governments, will not be operative, and that to be effective it must specify the particular class of acts upon which the federal statute is intended to operate, in order that it may be seen that they are within the scope or domain of federal legislation.

Assuming that such is the rule, in our view there is nothing in the sections of the statute under consideration which, under any reasonable construction, could include matters within the exclusive control of state governments. On the contrary, the sections in question only assume.

to deal with wrongs against the federal government, and expressly describe conspiracies to commit offenses against the United States and conspiracies to defraud the United States, thus limiting the subject-matter of the legislation to matters concerning the federal government alone; and, while the language is general as to persons and conspiracies, the subject with which the statute assumes to deal limits its scope to conspiracies to commit offenses against the United States and conspiracies to defraud the United States. Criminal statutes of a state are general in the sense that they operate upon all members of the public and for the protection of all. The statute in question is general in the sense that it operates upon all in respect to subjects which concern the federal government alone, and for the protection of a single entity alone, that of the government. In speaking of the limited and special powers and purposes of the federal government, it was said by the Supreme Court in United States v. Cruikshank et al., 92 U. S. 542, 550, 23 L. Ed. 588, that "the government thus established and defined is to some extent a government of the states in their political capacity. It is also, for certain purposes, a government of the people. Its powers are limited in number, but not in degree. It was erected for special purposes, and endowed with all the powers necessary for its own preservation and the accomplishment of the ends its people had in view." And in furtherance of the idea of its own protection and preservation, and to the end that it might administer itself for the purposes for which it was created, its courts were invested with exclusive jurisdiction "of all crimes and offences cognizable under the authority of the United States." Rev. St. § 711 [U. S. Comp. St. 1901, P. 577].

* * *

It is clearly enough within the power of the federal government to protect itself by proper legislation from crimes against its operations as well as from crimes against its existence.

We now come to the main contention of the defense, which is that the conspiracy to deceive, and the acts in furtherance thereof, related to a regulation or a requirement of a department of the government, and not to the property or the money of the government and, therefore, that the conspiracy to defraud or deceive is not of a kind contemplated by the sections of the statute under which the indictment was drawn, and thus it will be seen that the question, under the defendant's main contention, is whether the allegations of the indictment, supported by the facts, constitute an offense, and justify conviction, and that question depends largely upon the sense in which the word "defraud" was used in the sections of the statute under consideration. Speaking generally, when a word which was used in the old English statutes and in the common law, and which has been accepted as having a particular meaning in the comomn law, is used in a modern statute, it is ordinarily presumed that the word was used in its common-law sense, but this meaning may be enlarged or limited by its setting in a particular statute. Quite likely the word "defraud," as ordinarily used in the common law, and as used in English statutes and in the statutes of our states, enacted with the object of protecting property and property rights of communities and individuals, as well as of municipal governments, which exist largely for the purpose of