the claim was presented, if such person be sufficiently designated by his position, as First Auditor of the Treasury. So, also, different items of the account may all be included in one count of the indictment. United States vs. Am

brose, 2 Federal, 764.

In United States vs. Coggin, 3 Federal, 492, the Court held that old Section 5438 includes a false claim presented by a person as a pensioner, demanding money as a pensioner. In that case, the defendant, by fraud, secured a pension certificate from the Government, and thereby had his name entered on the pension roll. This certificate he presented to the Pension Agent, and obtained money from the United States. The indictment alleged that the grounds upon which the application was sustained before the Commissioner of Pensions and his name entered upon the list of pensioners, were all false, fictitious, and fraudulent, and that in fact he was not injured at the battle at Corinth in any way, and was not entitled to a pension. The Court held that the facts alleged were sufficient to constitute an offense under that section.

In the case of United States vs. Hull, 14 Federal, 324, it was held by a District Court, that the section was not limited in its operation to false claims presented by the accused on his own behalf, but applied as well to such claims presented by an attorney, agent, officer, or other person presenting or aiding in the collection of a false claim, knowing it to be false. Of course, the allegation of "knowledge" is absolutely necessary, as is also the proof. An indictment under this section that the defendant "presented and caused to be presented," is not bad for duplicity, because the statute employs the disjunctive "or" instead of "and." In United States vs. Franklin, 174 Federal, 161, the same question was passed upon, and the Court held that an indictment was not bad for duplicity because it charges that the accused "made and presented." In the Franklin case the indictment, which set out the claim showing it to be an itemized account, and averred that certain sums charged therein "should have been" certain smaller sums, sufficiently shows wherein the claim is false and fraudulent. In that case it was alleged that the fraudulent claim was against the War Department of the United States, and described the officer to whom the claim was presented as a Brigadier-General in the Army, and Sup

erintendent of the Military Academy at West Point, and alleged that he was an officer authorized to approve such claim. Held, that such allegation was sufficient to show authority. Affirmed by U. S. Supreme Court, March 14, 1910.

The case of United States vs. Ingraham, 49 Federal, 155, was an indictment for presenting for payment and approval to the Third Auditor of the Treasury Department of the United States of America, a certain claim against the Government of the United States, and also in the second count for using a false affidavit in support thereof. An objection of uncertainty, charging no offense and duplicity, was overruled by the trial court, and the same questions were presented to the Supreme Court in the same case, reported in 155 U. S., page 436; 39 Law Ed., page 213, and the conviction was affirmed, the Court holding that it was not error, of course, to join distinct offenses of the same class in one indictment in separate counts, and that a paper presented to the Third Auditor of the Treasury of the United States, in support of a claim against the Government, purporting to be an affidavit certified to by a Justice of the Peace, is admissible in evidence without formal proof that he had been duly commissioned and qualified as a Justice of the Peace, and that the person indicted for presenting for payment a false and fictitious claim to the Auditor of the Treasury, and using a false affidavit in support thereof, if he knew it to be false, is not the less guilty because the person purporting to be a Justice of the Peace before whom the affidavit was sworn to, had not been commissioned as such, and was not entitled to administer an oath.

In the case of United States vs. Michael, 153 Federal, 609, Judge Maxey instructed the jury that the receiving in pledge by a civilian from a solider, of clothing issued to the latter, during the term of his enlistment, does not constitute a penal offense within Revised Statutes 5438, providing that every person who purchases or receives in pledge from a soldier any arms, equipment, ammunition, clothing, military stores, or other public property, such soldier nothaving the lawful right to pledge or sell the same, shall be imprisoned, etc., since the clothing, on being issued to the soldier, becomes his individual property, and ceases to belong to the United States. In conflict with this opinion, seems to be the case of United States vs. Koplik, 155 Federal, 919, in which

Judge Chatfield holds that it is not a defense to a prosecution under such statute, 5438, for receiving property in pledge from a soldier while in the service, that such property consisted of clothing which he had paid for out of his clothes allowance, or which had been charged against it. The policy of the statute seems to be best served by Judge Chatfield's decision. In United States vs. Hart, 146 Federal, 202, a decision of District Judge Bethea seems in a measure to support Judge Chatfield's construction of the statute. It is there said:

"On motion to take from the jury, the question arose as to whether certain articles of clothing, namely, caps, gloves, shoes, and goods which had been issued to soldiers in the service of the United States, and by them sold and pledged to the defendant, are public property under Section 5438 of the Revised Statutes. Clothing is issued to soldiers of the United States for use by them in the capacity of soldiers. The Government determines the character, quality, and kind of clothing to be issued to the soldiers; and when the clothing is issued, although it is charged against the soldiers on their clothing account, they receive but a qualified interest therein."

The Seventeenth Article of War punishes the soldier by Court Martial if he loses or spoils his clothing or accoutrements, and Section 3748 authorizes the Government to seize such property wherever found. This would indicate that the title to clothing issued to soldiers remains in the United States.

The case of United States vs. Smith, 156 Federal, 859, while it is a prosecution under the same portion of the statute, does not raise or discuss the conflict noted in the above two cases. Judge Hanford, in the Smith case, in charging the jury, says:

"You will observe that the provisions of this statute, 5438, apply to persons who knowingly purchase or receive in pledge any of the kinds of property described here from a soldier, officer, or sailor in the service of the United States. The elements of the crime are guilty knowledge, and the actual purchase of and receiving in pledge the kind of property named, and receiving it from a person in the military service of the United States. All those things are necessary to be proven, in order to make out a criminal case. The guilty knowledge that is a necessary element of the crime is not knowledge that the act is unlawful. The law

does not permit ignorance of the provisions of the law to avail as a defense in any case, but the knowledge must be knowledge of the facts-knowledge that the property offered for sale or pledge is the military stores or property of the United States-that is, arms, clothing, or property that is provided by the United States for use in the military service, and knowledge that the person offering to sell or to pledge it is a person in the military service at the time."

It must be borne in mind that Sections 3748 and 1242 of the old statutes in short make the possession of such property of the United States by a person not in the service of the United States, prima facie evidence that it had been sold or pledged.

Other cases bearing upon the statute in its entirety, are the following: United States vs. Daubner, 17 Federal, 793; U. S. vs. Russell, 19 Federal, 591; U. S. vs. Griswold, 24 Federal, 361; U. S. vs. Frisbie, 28 Federal, 808; U. S. vs. Rhodes, 30 Federal, 431; U. S. vs. Griswold, 30 Federal, 604, also same Volume, 762; U. S. vs. Reichurt, 32 Federal, 142; U. S. vs. Jones, 32 Federal, 482; U. S. vs. Route, 33 Federal, 246; U. S. vs. Gowdy, 37 Federal, 332; U. S. vs. Wallace, 40 Federal, 144; U. S. vs. Newton, 48 Federal, 218; U. S. vs. Strobach, 48 Federal, 902; U. S. vs. Adler, 49 Federal, 733; U. S. vs. Van Leuven, 62 Federal, 62; U. S. vs. Hartman, 65 Federal, 490; Rhodes vs. U. S., 79 Federal, 740; Dimmick vs. U. S., 116 Federal, 825; U. S. vs. Lair, 118 Federal, 98; Pooler vs. U. S., 127 Federal, 509; Franklin vs. U. S., U. S. Sup. Ct., Oct., 1909, term.

In Bridgeman vs. United States, 140 Federal, 577, the Circuit Court of Appeals for the Ninth Circuit held that inasmuch as the statutory provisions and rules and regulations of the Indian Department required accounts and vouchers for claims and disbursements connected with Indian affairs to be transmitted to the Commissioner of Indian Affairs, that a transmission to such commissioner by an agent of the Department, of a false voucher, etc., was an offense under 5438. This case also authorizes the use of the words "making and presenting," as was considered to be correct in the cases cited above. Two of the counts in that indictment are set out in the decision and approved by the Court, as is also the full charge of the trial judge.

§ 180. Embezzling Arms, Stores, Etc.-As a companion to the section treated above, appears Section 36 in the new Code, which displaces old Section 5439, and is in the following words:

"Sec. 36. Whoever shall steal, embezzle, or knowingly apply to his own use, or unlawfully sell, convey, or dispose of, any ordnance, arms, ammunition, clothing, subsistence, stores, money, or other property of the United States, furnished or to be used for the military or naval service, shall be punished as prescribed in the preceding section."

As somewhat enlightening upon the question as to what steps one should take in order to be in the military service of the United States, may be read the case of Johnson vs. Sayre, 158 U. S., 109. In that particular case, the Court held that a postmaster's clerk in the navy, appointed by the Secretary of the Navy with the approval of the President, is in the naval service of the United States; but in the reasoning of the opinion will be found a number of authorities and reasons that apply to other conditions.

Section 36 above quoted occupies the same position to Section 35 as old Section 5439 did to old Section 5438, and, therefore, the observation of District Judge Swing, in the case of United States vs. Murphy, 9 Federal, page 26, is applicable and pertinent. In that case the indictment was drawn under Section 5439. It contained two counts, charging that the defendant had applied to his own use an overcoat, which had been issued to an inmate of the National Military Home at Dayton, to be used by him for the military service of the United States. A demurrer to the bill raised. the question whether clothing so issued to inmates of that institution was within the prohibition of that section. The Court said:

"The preceding section (5438) prohibits the purchase of clothing, etc., from any soldier or other person called into or employed in the military service of the United States, such soldier or person not having the lawful right to sell the same. This section (5439), then, prohibits any person from knowingly applying to his own use any clothing or other property of the United States, furnished or to be furnished for the military service. Under Section 5438, the clothing must be purchased from a person in the military service'; under Section 5439, it must be clothing or other property of the United States 'furnished or to be used for the military serv