BRAFFORD v. UNITED STATES, 259 F. 511

KNAPPEN, Circuit Judge.

Section 32 of the Criminal Code of the United States (U. S. Comp. Stat. § 10196), as construed in United States v. Barnow, 239 U. S. 74, 36 Sup. Ct. 19, 60 L. Ed. 155, pro-' hibits two offenses:

(1) With intent to defraud either the United States or any person, the falsely assuming or pretending to be an officer or employé acting under the authority of the United States, or any department, or any officer of the government thereof, and taking upon oneself to act as such; and (2) with intent to defraud either the United States or any person, the falsely assuming or pretending to be an officer or employé, etc., and in such pretended character demanding or obtaining 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.

Plaintiff in error was indicted under this section.

The first count, stripped of redundancy, charges, in substance, that the accused, with intent to defraud the Lockwood Automobile Company, of Memphis, Tenn., and others, falsely pretended to be an officer and employé of the United States, acting under its authority, and especially under the authority of its Department of Agriculture (specifically, pretending to be a regularly and duly appointed inspector of cattle and live stock infected with foot, mouth, and other diseases), and by so falsely representihg himself to be such officer and employé fraudiilently obtained from the Lockwood Automobile Company a certain quantify of gasoline and other property.

The second count differs from the first, so far as material and substantial, only in charging the fraudulent obtaining of money and other property from the Owl Auto Company, at Memphis, Tenn. A motion to quash the indictment and a motion made at the close of the trial to direct verdict for defendant were overruled. Following conviction upon both counts, defendant’s motion in arrest of judgment, was denied. 1. The motion to quash the indictment was properly overruled. The argument pressed here seems to be in substance that the mere impersonation of an officer of the United States government is not an offense under

section 32, and that the indictment is defective in failing to charge that the accused “took upon himself to act as such inspector” and “while so acting” obtained the property in question. But it is not necessary to a violation of the second subdivision that the accused “take upon himself to act as such” United States officer or employé; it is only necessary that the property be obtained by the accused “in such pretended character.” United States v. Bar now, supra.

We think the allegation that the accused did “falsely and fraudulently obtain” the money and property “by inducing” the automobile company to part with it, “by falsely representing himself to be such officer and employé,” sufficiently charges that the money, etc., was fraudulently obtained “in such pretended character.” Littell v. United States (C. C. A. 9) 169 Fed. 620, 622, 95 C. C. A. 148. Like considerations apply to the second count. 2. The first ground of the motion to direct verdict is that there was a variance between the allegation and proof in this: (

a) That in the first count the Lockwood Automobile Company is.not charged to be a corporation, while it turns out to have been such; (

b) that the Owl Auto Company, charged in the second count to be the victim of the fraud, is shown to have been merely a trade-name under which one Lee carried on business; it having formerly been a partnership name. It is clear, upon authority (if such were needed), that there is no variance with respect to the first ground. Fisher v. State, 40 N. J. Law, 169; People v. Mead, 200 N. Y. 15, 92 N. E. 1051, 140 Am. St. Rep. 616. We think the lack of variance with respect to the second ground equally clear on principle.

The accused was better informed by the use of the name under which alone the business was carried on than if Lee had instead been named. There is no suggestion of surprise, nor could there well be. The remaining ground of the motion to direct is that there was no substantial proof of the offense charged. We cannot agree with this contention. Setting to one side, as without merit, the point urged in this connection also, that there was no such entity as the Owl Auto Company, we pass to the other evidence.

In the case of the Lockwood Company there was express testimony that it refused to sell plaintiff in error gasoline on Sunday, November 3d, when the shop was closed in accordance with instructions from the “Conservation Board of Fuel Directors”; that plaintiff in error thereupon displayed a badge reading “Government Inspector,” with the statement that he was called upon to inspect hoof and mouth diseased cattle at a point near Hernando, Miss., and did not have sufficient gasoline to get there and back (there was undisputed evidence of subsequent admissions by plaintiff in error that he was not a government inspector) ; that the company’s treasurer, relying upon this representation and believing that plaintiff in error was a government officer on official business, and wanted the gasoline for use in that business, delivered to him several gallons of gasoline, taking his check dated the next day for the amount.

The check was dishonored by the bank on which it was drawn. It appeared by other evidence that inspection of hoof and mouth diseased cattle is made by a veterinary inspector of the Department of Agriculture, Bureau of Animal Industry. It is immaterial whether or not there was any government officer or employé with the precise title assumed by plaintiff in error. The statute is aimed against the false pretense of office or employment under the United States, if done with intent to defraud and accompanied with any of the acts specified in the statute done in the pretended character. United States v.

Barnow, supra; Lamar v. United States, 241 U. S. 103, 114 —116, 36 Sup. Ct. 535, 60 L. Ed. 912. It is likewise immaterial that the check has since been made good. U. S. v. Barnow, supra. We see no merit in the proposition that the Lockwood Company could not have relied upon the false pretense of federal employment, for the reason that, as was testified, it would not have accepted the check, had it not supposed it would be paid.

Lockwood’s testimony was that he would not have accepted the check from a stranger, in the absence of such representations, without further investigation; that he believed the check would be paid on presentation, from the statement of plaintiff in error that he was an official inspector for the government; and that the acceptance of the check was made by reason of that representation. We think there was substantial evidence that the gasoline was obtained under the false pretense charged.

It is unnecessary to a violation of the second subdivision of the statute that the gasoline be furnished on the credit of the government as debt- or. It is enough that the gasoline was procured by means of the representations stated. United States v. Ballard (D. C.) 118 Fed. 757; Littell v. United States, supra. The evidence with respect to the Owl Company transaction, while differing in details from that of the Lockwood Company, has similar features generally, and is governed by similar considerations to those we have discussed.

There was evidence that plaintiff in error represented that “he was in the government service” and “displayed a badge, ‘Government Inspector,’ on it.” There also was testimony that the check (which purported to be that of another person, and was indorsed by plaintiff in error) would not otherwise have been accepted. ' The witness said that he “did not think a man in the government service would give me a bum check,” and that, while he thought the check would be paid on presentation (it was in fact dishonored), “he had [apparently meaning he thought he had] a man in the government service who would pay it if it was not.” The motion in arrest of judgment was properly overruled.

The judgment of the District Court should be affirmed.