34 U.S. 267
9 Pet. 267
9 L.Ed. 124
UNITED STATESv.JOHN BAILEY.
January Term, 1835

ON a certificate of division of opinion of the judges of the circuit court of the United States, of the district of Kentucky.
The defendant was indicted under the act of March 3d 1823, entitled 'an act for the punishment of frauds committed on the government of the United States.'
The act provides, 'that if any person or persons shall falsely make, alter, forge or counterfeit, or cause or procure to be falsely made, altered, forged or counterfeited, or willingly aid or assist in the false making, altering, forging or counterfeiting any deed, power of attorney, order, certificate, receipt or other writing, for the purpose of obtaining or receiving, or of enabling any other person or persons, either directly or indirectly, to obtain or receive from the United States, or of any of their officers or agents, any sum or sums of money; or shall alter or publish as true, or cause to be altered or published as true, any such false, forged, altered or counterfeited deed, power of attorney, order, certificate, receipt or other writing as aforesaid, with intent to defraud the United States, knowing the same to be false, altered, forged or counterfeited; or shall transmit to or present at, or cause or procure to be presented at any office or offices of the government of the United States, any deed, power of attorney, order or certificate, receipt or other writing, in support of, or in relation to any account or claim, with intent to defraud the United States, knowing the same to be false, altered, forged or counterfeited: every such person shall be decreed and adjudged guilty of felony.'
On the 5th of July 1832, an act was passed, entitled 'an act to provide for liquidating and paying certain claims of the state of Virginia.'
The third section of the act directs and requires the secretary of the treasury, to adjust and settle the claims, the payment of which the United States thus assumes; and among them certain claims to half pay of the officers of the Virginia line; and to pay the same out of the treasury.
The defendant and his brothers presented a claim under this act, asserting themselves to be the representatives of John Bailey deceased, a captain in the regiment commanded by colonel Clark; and received by their attorney, under powers delegated to him, a large sum of money from the United States, as and for the half pay of John Bailey.
The paper presented at the treasury in support of the claim, was in the following words and figures.
'Commonwealth of Kentucky, county of Bath, to wit:
'The affidavit of John Bailey, one of the executors of captain John Bailey, deceased, states that he is not interested in said estate, that Warren Bailey, Jun. and James C. Bailey, who have joined with him in a power of attorney to the honourable Richard M. Johnson, to draw any moneys that may be due them from the government of the United States, are the residuary legatees, and solely interested; that he is years of age, and the son of said John Bailey, deceased, who, from his earliest recollection, was reputed a captain in the revolutionary army, and in the Illinois regiment; that he has been his father's commission, and thinks there were two; of that fact he will not be certain, but it is his strongest impression, and is perfectly confident, that the commissions, if two, both were signed by Thomas Jefferson; that his father's papers fell into his hands as executor, and he has made many fruitless searches for them, and can in no wise account for their loss, unless they were given to general Thomas Fletcher, deceased, while a member of congress, to see if he could get any thing, as affiant knows that his father applied to said Fletcher to do something for him, and understood afterwards the law had made no provision for cases situated like said John Bailey.
'As witness my hand and seal this ___ day of November 1832.
'JOHN BAILEY, [SEAL].
'State of Kentucky, Bath county, to wit:
'The foregoing affidavit was signed and sworn to, before me, by John Bailey, Jun., and I further certify that said John Bailey, Jun. is a man of truth and respectability, and to be strictly relied on when on oath.
'Given under my hand and seal, as a justice of the peace for Bath county, and commonwealth aforesaid, this 25th day of November 1832.
'J. REED, J. P. B. C., [SEAL].


1
'State of Kentucky, Bath county, to wit:


2
'I, William M. Suddeth, clerk of the Bath county court, do certify that the aforesaid Josiah Reed, whose name is subscribed to the foregoing certificate, is a justice of the peace in and for the county aforesaid, duly commissioned and sworn, and the hand writing is genuine and well known to the aforesaid William M. Suddeth; as witness my hand and seal of office this 26th November 1832.


3
'W. M. SUDDETH, [SEAL].'


4
The indictment which set forth this writing, contained four counts, charging respectively the false making of the said writing, purporting to be an affidavit, and feloniously causing the jurat of the justice of the peace to be annexed to it—the uttering as true the whole paper—the causing it to be transmitted to the treasury department—and causing it to be presented at the department in support of the claim.


5
In the record the following case was stated, and the division of the judges of the court on the same, in the circuit court.


6
The attorney of the United States read in evidence to the jury the paper set out in the indictment, purporting to be the affidavit of the prisoner and the certificates of Josiah Reed and William Suddeth thereto attached, and proved that the signature of John Bailey, to the writing purporting to be his affidavit, was in the hand-writing of him, the prisoner; that the signature to the certificate of Josiah Reed was in his hand-writing, and that he was a justice of the peace of Kentucky, for the county of Bath, at the date thereof; that the certificate of William Suddeth was made and signed by him, and that he was clerk of the county court of Bath, as he certifies, and then gave satisfactory evidence that John Bailey, the father and testator of the prisoner, was not the John Bailey who was a captain in the Illinois regiment, as represented, and gave evidence conducing to prove that the prisoner had signed the paper purporting to be his affidavit, and aided in procuring the said Reed to sign his certificate without he, the prisoner, ever having been sworn by the said Reed; that said Bailey fraudulently signed the said paper, and aided in procuring the certificate of Reed, and caused the said paper to be transmitted and presented at the treasury department of the United States, and there used in support of the claim, fraudulently made by the prisoner, as executor of his father, for the half pay due to John Bailey, as a captain in the Illinois regiment under the act of congress of the 5th of July 1832; that on this paper presented and received at the treasury, as the affidavit of the prisoner, and other documents, the claim was allowed, and the money paid to the attorney of the prisoner, and a part thereof paid over to him; this being all the evidence given on the part of the prosecution, the counsel for the prisoner moved the court to instruct the jury that the evidence did not conduce to establish the offence denounced by the first section of the act of congress of the 3d of March 1823, entitled 'an act for the punishment of frauds committed on the government of the United States,' nor any other act of congress under which the indictment was framed, which motion the attorney of the United States opposed, and on this question the judges were divided, and their opinions opposed. Whereupon, on motion of the attorney of the United States, the said question and agreement are stated and ordered to be certified to the supreme court.


7
The case was argued by the Attorney-General, and Mr Loughborough, for the United States; no counsel appeared for the defendant.

For the United States, it was contended:

8
1. That the writing set forth in the indictment is within the act of congress of 1823 for the punishment of frauds. 3 Inst. 169, 171; 2 East's Crown Law 920; The King v. Lyon, 1 Russ. & Ry. 255; Dyer 302.


9
2. That the evidence shows a fraud committed on the government by the prisoner.


10
3. That the act of 1823 is not against forgeries only, but is an act for the punishment of frauds. It should be construed so as to effectuate the intention of the legislature, as expressed, not only in the title of the act, but by its words, taken in their ordinary sense; and cases should not be excluded which, thus construed, the act embraces. United States v. Wiltberger, 5 Wheat. 95, 4 Cond. Rep. 593; 1 Black. Com. 59, 60, 89.


11
4. That the first count in the indictment is sustained, the writing having been 'falsely made,' in the sense in which these words in the act should be taken. 3 Inst. 169; Taverner's Case, Dyer 322; 3 Leon. 108; Moore 655; 1 Hawk. ch. 70; 2 East 920; 13 Viner 464; The King v. Maddox, 2 Russ. on Crimes 458.


12
5. That the subsequent counts, founded upon the use of the paper, were sustained by the proof; and that the writing which the prisoner fraudulently uttered, and caused to be transmitted and presented at the treasury, was such a false writing and certificate, as is meant by the act of congress. Ellsworth's Case, 2 East's Crown Law 986, 988; 2 Russ. on Crimes 1513.


13
6. That the construction of the act contended for, will create no new offence, the acts shown against the prisoner amounting to an offence at common law, which would be punishable in the circuit court, if it had a common law criminal jurisdiction. 2 Russ. on Crimes 1361, 1366, 1373; 4 East's Rep. 171; 2 Chitty's Black. 158, note; 1 Hawk. 323; Strange 1144; 7 Mod. 379.


14
7. That if the act of 1823 be regarded as an act against forging and counterfeiting only, still an offence is shown against the prisoner, because.


15
1st. A writing may be falsely made, i. e. forged, in the party's own name. 1 Hawk. ch. 70; Lewis's Case, Foster 117; Case of Parks and Brown, 2 East 963; 6 Cowen 72.


16
2d. The writing, though in the prisoner's own name, was made as in a character which he did not bear, and without the assumption of which the fraud could not have been perpetrated. Cases supra; 1 Leach 110.


17
3d. The writing purports to be, and was used as, an affidavit or writing sworn to, not being so in fact. The credit which was given to it, was that which was due to a sworn paper only; a paper not sworn to, being, in the particular case, unavailing as an instrument of fraud. There was, therefore, given to the writing the false appearance of that without which it could not have imposed upon the secretary of the treasury. Wherefore, it is a counterfeit. United States v. Turner, 7 Peters 132.


18
Mr Chief Justice MARSHALL delivered the opinion of the Court.


19
This is a case certified to this court from the circuit court of the United States, for the seventh circuit and district of Kentucky, on which the judges of that court were divided in opinion.


20
An indictment had been found against John Bailey upon the act of March 3d 1823, for the punishment of frauds committed against the United States.


21
After the attorney for the prosecution had laid his whole case before the court and jury, the counsel for the prisoner moved the court to instruct the jury, that the evidence did not conduce to establish the offence denounced by the first section of the act of congress of the 3d of March 1823, entitled 'an act for the punishment of frauds committed on the government of the United States,' nor any other act of congress under which the indictment was framed; which motion, the attorney for the United States opposed, and on this question the judges were divided and their opinions opposed. Whereupon, on motion of the attorney for the United States, the said question and disagreement were stated and ordered to be certified to the supreme court.


22
The 6th section of the act 'to amend the judicial system of the United States,' enacts, 'that whenever any question shall occur before a circuit court, upon which the opinions of the judges shall be opposed, the point upon which the disagreement shall happen, shall, during the same term, upon the request of either party or their counsel, be stated under the direction of the judges, and certified under the seal of the court to the supreme court, at their next session, to be held thereafter; and shall by the said court be finally decided.' The act also contains a provision, that 'nothing herein contained shall prevent the cause from proceeding; if, in the opinion of the court, farther proceedings can be had without prejudice to the merits.' Story 856.


23
The language of the section shows, we think, conclusively, that congress intended to provide for a division of opinion on single points, which frequently occur in the trial of a cause; not to enable a circuit court to transfer an entire cause into this court, before a final judgment. A construction which would authorize such transfer, would counteract the policy which forbids writs of error or appeal until the judgment or decree be final. If an introductory judgment or decree could be brought into this court, the same case might again be brought up after a final decision; and all the delays and expense incident to a repeated revision of the same cause, be incurred. So if the whole cause, instead of an insulated point, could be adjourned; the judgment or decree which would be finally given by the circuit court, might be brought up by writ of error or appeal, and the whole subject be re-examined. Congress did not intend to expose suitors to this inconvenience; and the language of the provision does not, we think, admit of this construction. A division on a point, in the progress of a cause, on which the judges may be divided in opinion; not the whole cause; is to be certified to this court.


24
The certificate of the judges leaves no doubt that the whole cause was submitted to the circuit court, by the motion of the counsel for the prisoner. The whole testimony in support of the prosecution had been submitted to the court, and upon this whole testimony, the counsel for the prisoner moved the court to instruct the jury, that the evidence did not conduce to establish the offence denounced by any act of congress, under which the indictment was framed. This instruction necessarily embraced the whole cause. Had it been given, the prisoner must have been acquitted. Had the court declared that the testimony did support the indictment, the whole law of the case would have been decided against the prisoner; and the jury must have convicted him, or have disregarded the instruction of the court.


25
It has been repeatedly decided, that the whole cause cannot be adjourned on a division of the judges; and as this is, we think, a case of that description, we cannot decide it in its present form. The case is remanded to the circuit court; this court not having jurisdiction over the question as stated.


26
This cause came on to be heard on the transcript of the record from the circuit court of the United States, for the district of Kentucky, and was argued by counsel; on consideration whereof, it is the opinion of this court that the whole case has been certified to this court; and as it has been repeatedly decided by this court, that the whole case cannot be adjourned on a division of the judges, the court cannot decide this case in its present form. Whereupon, it is ordered and adjudged by this conrt, that this case be, and the same is hereby remanded to the said circuit court for further proceeding, to be had therein according to law and justice, this court not having jurisdiction over the question as stated.

