United States v. Provenzano , 171 F. 675 ( 1909 )

RAY, District Judge.

Section 5431 of the Revised Statutes of the United States reads as follows:

“Every person who, with intent to defraud, passes, utters, publishes, or sells, or attempts to pass, utter, publish or sell, or brings into the United States with intent to pass, publish, utter or sell, or keeps in possession or conceals with like intent any falsely made, forged, counterfeited, or altered .obligation, or other security of the United States, shall be punished by a fine of not more than five thousand dollars, and by imprisonment at hard labor not more than fifteen years.” U. S. Comp. St. 1901, p. 3671.

Under this section it is made a crime to pass, utter, publish, or sell any counterfeit obligation of the United States, if the act be done with intent to defraud. It is also a crime to attempt to pass, utter, publish, or sell any such counterfeit obligation, if done with intent to defraud. It is also made a crime to bring such a counterfeit obligation into the United States, with the intent to pass, publish, utter, or sell it, irrespective of intent to defraud.. Then it is made a crime to keep in possession or conceal any falsely made, forged, or counterfeited obligation or other security of the United States “with like intent” It is contended that, where there is mere possession with knowledge of the counterfeit character of the obligation, it is necessary to charge in the indictment, and prove, not only an intent to defraud, but an intent to pass, publish, utter, or sell the same. In short, that one who passes, etc., or who attempts to pass, etc., must do so with intent to defraud, but that mere possession of such a counterfeit, and keeping in possession with knowledge of its character, and with intent to use it to defraud, is not a crime.

I do not so construe this section of the Revised Statutes. The words “with like intent” refer to the intent to defraud, not to all of the intents previously .named, or to the intent attached to bringing counterfeits, etc., into the United States. Possession with intent to defraud, or with intent to pass, or utter, or sell, or publish, is sufficient. Mere possession with knowledge of the counterfeit character is not sufficient. There must be, with keeping in possession, an intent to defraud. An intent to pass or utter counterfeit silver certificates as good and genuine for a consideration would be an intent to defraud. It is plain that Congress intended to make the intent to defraud the criminal intent; for the section starts off by saying, “Every person who with intent to defraud” does certain things, or who attempts to do certain things, or who brings certain counterfeits into the United States with intent to pass, etc., or who keeps in possession or conceals any counterfeit, etc., “with like intent,” meaning plainly the main intent first mentioned, is to be punished.

As the objection is as to the indictment, which charged an intent to defraud and did not charge an intent to pass, utter, publish, or sell, and the evidence showed possession of counterfeit, silver certificates with knowledge of their character and an intent to pass, or utter, or sell same — that is, dispose of same as genuine — and thus defraud the taker or takers, and the jury was told they must find such intents in order to convict, and did so find, I hold the conviction good. I am not willing to hold, in face of the statute referred to and quoted, that it is not a crime to have and keep in possession, knowing their spurious character, counterfeit silver or gold certificates, with intent -to defraud some person or persons therewith. I think the statute, reasonably construed to effectuate the plain intent thereof, makes such a possession with such knowledge and such an intent a crime.

The motion in arrest of judgment is overruled.