Lamar v. Splain

Mr. Chief Justice Shepard

delivered the opinion of the Court:

The argument has taken a wider range than it is important .to follow.

It would seem that when the recognizance was entered into before the Commissioner the duty of the latter ended; and that subsequent proceedings for the surrender of the prisoner by his surety should have been before the court having jurisdiction of the offense.

Whether so or not, the question is immaterial. The action having been taken in the interest of the petitioner, he is in no condition to question its irregularity.

In the original proceeding before the Commissioner, the copy of the indictment and writ, and the admission of the identity of the prisoner, constituted a prima facie case for removal. Haas v. Henkel, 216 U. S. 462, 481, 54 L. ed. 569, 578, 30 Sup. Ct. Rep. 249, 17 Ann. Cas. 1112; Price v. Henkel, 216 U. S. 488, 492, 54 L. ed. 581, 586, 30 Sup. Ct. Rep. 257.

No evidence of any nature was offered by the prisoner.

The single question for determination is this: Does the indictment charge an offense against the laws of the United States ?

__In this consideration: “The only safe rule is to abandon entirely the standard to which the indictment must confoi'in, judge as a criminal pleading, and consider only whether it shows satisfactorily that the fugitive has been in fact, however inarti'ficially, charged with crime in the State from which he has fled.” Pierce v. Creecy, 210 U. S. 387, 402, 52 L. ed. 1113, 1120, 28 Sup. Ct. Rep. 714; and cases there cited. Strassheim v. Daily, 221 U. S. 280, 282, 55 L. ed. 735, 737, 31 Sup. Ct. Rep. 558. The foregoing were extradition eases on demand of a State; but the rule applies in proceedings for removal to a United States court in another jurisdiction. Haas v. Henkel, supra.

One good count in an indictment under which a trial may be had in the district to which removal is sought is enough to support an order for removal. Price v. Henkel, 216 U. S. 488, 490; 54 L. ed. 581, 585, 30 Sup. Ct. Rep. 257. For this' reason objections to other counts than the first will not be considered. If the first count, before' recited, substantially charges an offense against the United States, the others will be for the exclusive determination of the court in which the indictment was returned.

The charge in the indictment is that defined in sec. 32, chap. 4, of the Criminal Code of the United States, [35 Stat. at L. 1095, chap. 321, U. S. Comp. Stat. Supp. 1911, p. 1598], reading as follows:

“Whoever, with intent to defraud either the United States or any person, shall falsely assume or pretend to be an officer or employee acting under the authority of the United States, or any Department or any officer of the government thereof, and shall, take upon himself to act as such, or shall in such pretended character demand or obtain from any person or from the United States, or any Department, or any officer of the government thereof, any money, paper, document, or other valuable thing, shall be fined not more than one thousand dollars or imprisoned not more than three years, or both.”

In a case cited on behalf of the appellant it is declared that this section includes two separate offenses; the first, falsely impersonating an officer or employee of the United States and acting as such with intent to defraud; the second, falsely impersonating an officer or employee of the United States, and in the assumed character demanding or obtaining some valuable thing with intent to defraud. United States v. Taylor, 108 Fed. 621.

This indictment purports to charge the first of those offenses.

The contention is that there is no offense charged because a member of the House of Representatives is not an officer of the United States. If this contention be sound the indictment is bad in substance. We have found no case in which the point has been determined.

Office, in the common use and meaning of the word, is a public charge or position that may be held in the Federal, a State, or a municipal government, and is executive, judicial, or legislative in character.

A member of the House of Representatives in the Congress of the United States is elected by the voters of his State in a designated district, to hold a position of honor and trust created by the Constitution of the United States as a branch of the national legislative department. As such he is an officer of the United States in the general sense. We do not regard the case of Burton v. United States, 202 U. S. 344, 369, 50 L. ed. 1057, 1066, 26 Sup. Ct. Rep. 688, 6 Ann. Cas. 362, as opposed to this view.

Burton, a member of the Senate of the United States, had been convicted of a crime. The judgment convicting him proceeded to recite, in the terms of sec. 1782, Rev. Stat. U. S. Comp. Stat. 3 901, p. 1212, that he “is rendered forever hereafter incapable of holding any office of honor, trust, or profit under the government of the United States.” It was said that the words might well have been omitted from the judgment.

“By its own force, without the aid of such words in the judgment, the statute makes one convicted under it incapable forever thereafter of holding any office of honor, trust, or profit under the government of the United States. But the final judgment of conviction did not operate, ipso facto, to vacate the seat of the convicted senator, nor compel the Senate to expel him, or to regard.him as expelled by force alone of the judgment. The seat into which he was originally inducted as a senator from Kansas could only become vacant by his death, or by the expiration of his term of office, or by some direct action on the part of the Senate in the exercise of its constitutional powers.”

This is necessarily so because the Constitution provides that each House shall be the judge of the elections, returns, and qualifications of its own members. Art. I. sec. 5. The court proceeded then to use the language relied on by the appellant: “This must be so for the further reason that the declaration in see. 1782, that anyone convicted under its provisions shall be incapable of holding any office of honor, trust, or profit 'under the government of the United Statesrefers only to offices created by or existing under the direct authority of the national government as organized under the Constitution, and not to offices the appointments to which are made by the States acting separately, albeit proceeding, in respect of such appointments, under the sanction of that instrument. While the Senate, as a branch of the legislative department, owes its existence to the Constitution, and participates in passing laws that concern the entire country, its members are chosen by State legislatures, and cannot properly be said to hold their places under the government of the United States.”

What is here held is that officers “under the government of the United States” are those appointed in the manner provided in the Constitution. It falls far short of holding that a member of Congress, though not holding an office under the government of the United States, is not an officer of that government. His office is not created by the government organized under the Constitution, but is an integral part of that government.

Sec. 32 punishes one who falsely assumes or pretends to fie an officer of the United States, and its object would seem to apply equally as well to a legislative officer of the United States as to one holding an office under the government thereof. Be that as it may, it is not plain that it does not so apply, and for that reason its interpretation is peculiarly the province of the court in which the indictment was presented.

We find no error in the judgment and it is affirmed, with costs. Affirmed.

An appeal to the Supreme Court of the United States was allowed May 12, 1914.