(concurring in part).
With respect to those counts based on principal affidavits which contained alternative statements, neither of which was stricken out, it is my opinion that the judgment should be reversed.
In the refining of silver, newly mined silver 1 and other silver are frequently mixed and when the refining process is completed, it is, of course, impossible to determine what part of the mixture is newly mined and what part is other silver. The regulations take cognizance of that situation and provide for delivery to the Mint, for purchase as newly mined silver, either newly mined silver or silver from a mixture of newly mined and other silver. But if the silver tendered for purchase is from a mixture of newly mined and other silver, the amount tendered from the mixture for purchase at the newly mined silver price, plus any part of such mixture theretofore delivered or transferred to a United States Coinage Mint, under the proclamation of April 24, 1935, amending the proclamation of December 21, 1933, as amended, must not exceed the amount of newly mined silver in the mixture.
The principal affidavit upon which count one is predicated in part reads as follows:
“ * * * the undersigned hereby represents and certifies under oath that he is the President of Colorado Smelt-(Title of Officer) (Name ing & Refining Co., the owner of certain of Owner) silver to the amount of 2951.72 fine troy ounces, more or less, forwarded to the United States Mint at Denver, (Dist) Colo., on the 21st day of February, 1936, and delivered to the Mint under the provisions of said Proclamation of December 21, 1933, as amended, and the Regulations prescribed thereunder; and that said silver* -(1) (has been mined on or after April 24, 1935 and prior to midnight of December 31, 1937, from natural deposits in the United States or a place subject to the (2) jurisdiction thereof,) [or is part of a mixture of domestic silver and does not, together with any part of such mixture heretofore delivered or transferred by the undersigned to a United States Coinage Mint under the Proclamation of April 24, 1935, amending the Proclamation of December 21, 1933, as amended, exceed the amount of such mixture which has been mined on or after April 24, 1935 and prior to midnight of December 31, 1937, from natural deposits in the United States or a place subject to the jurisdiction thereof.] * * * ” (Parentheses and brackets mine.)
If the silver was in fact wholly newly mined, the part of the affidavit enclosed in brackets should have been stricken out. If the silver was from a mixture, that part in parentheses and the word “or” which follows it, should have been stricken out, under the direction set forth in a note appended to the affidavit form.
Count one of the indictment charged that both statements in the affidavit were false. To establish that the principal affidavit upon which count one is predicated was false the government introduced proof that it was tendered to the Mint with three supporting affidavits, being the supporting affidavits on which counts 2, 3, and 4 are predicated, and that the amount stated in each of such supporting affidavits was largely in excess of the newly mined silver actually sold and delivered to the Refining Company by the affiant thereto. This proof warranted the jury in finding that the quoted portion of the affidavit in parentheses was false. It did not establish, however, that the quoted portion of the affidavit in brackets was false. There was no proof that the silver tendered for purchase with the affidavit set out in count one was not a part of a mixture of newly mined and other silver, and that the part tendered, together with any part of the mixture theretofore delivered or transferred to a United States Coinage Mint as newly mined silver, exceeded the amount of newly mined silver in the mixture. The two statements being in the alternative, the affidavit would not be false if either were true. Therefore, in order to establish that the affidavit was false it was incumbent upon the government to prove .that both statements were false.
What I have said respecting count one applies equally to other counts based on principal affidavits containing the alternative statements with respect to the silver.
But I cannot agree that the counts containing alternative statements were duplic*1011itous. They are predicated on 18 U.S.C.A. § 80, which in part reads as follows:
“ * * * or whoever shall knowingly and willfully * * * make or cause to be made any false or fraudulent statements or representations, or make or use or cause to be made or used any false * * * affidavit, * * *■ knowing the same to contain any fraudulent or fictitious statement or entry in any matter within the jurisdiction of any department or agency of the United States * * * shall be fined not more than $10,000 or imprisoned not more than ten years, or both.”
The defendants are not charged with the violation of the Silver Purchase Act, the President’s proclamations, nor the regulations promulgated thereunder. See 31 U.S. C.A. § 821. Rather, they are charged with violations of § 80, supra, to-wit, the presenting of a false affidavit in a matter within the jurisdiction of the United States Mint, an agency of the United States. The gist of the offense is knowingly and wilfully making, causing to be made, using, or causing to be used, a false affidavit in a matter within the jurisdiction of the United States Mint. See Capone v. United States, 7 Cir., 51 F.2d 609, 614, 76 A.L.R. 1534. .
While the statements in such affidavits were in the alternative, both could be false. The counts predicated thereon charged that both statements were false. In so doing, they did not charge two separate offenses. Rather, they charged the defendants used and caused to be used an affidavit which was false in two particulars. That is to say, that neither of the alternative statements was true and hence the affidavit was false.
It is contended that the trial judge made a misstatement of fact in his charge, which was prejudicial to the defendants. The misstatement was called to the attention of the trial judge and thereupon he instructed the jury that they had heard the evidence and seen the witnesses and must rely upon their own recollection of the testimony and not upon what he had told them. This, I think, cured any error in the charge.
The trial court properly refused to give certain requested instructions which were fully covered in the general charge.
The trial court refused to give the following tendered instruction:
“That they had a right to sell a mixture containing newly mined, domestic, secondary, or foreign silver to an extent equal to the silver contained in ore newly mined and that the percentage of such domestic, secondary or foreign silver was immaterial.”
This instruction does not fully state the law and was rightfully refused. It is true the defendants had a right under the regulations to sell as newly mined silver, silver from a mixture containing newly mined, domestic, secondary, or foreign silver. But this right was conditional. It was essential that the amount of silver tendered for purchase as newly mined silver from a mixture, together with the amounts that had theretofore been sold from the mixture as newly mined silver, should not exceed the total amount of newly mined silver in the mixture, and that the silver tendered for purchase should be accompanied by truthful supporting affidavits covering sales from miners of newly mined silver - equal to the amount of silver- tendered to the Mint for purchase. The tendered instruction should have included the conditions which the regulations attached to the sale of silver as newly mined silver from a mixture.
For the reasons indicated, I concur in the result.
Silver mined on or after April 24, 1935, from natural deposits in the United States or a place subject to the jurisdiction thereof.