United States v. Hamilton

157 F. 569, 1907 U.S. App. LEXIS 4827

Opinion

CHATFlEED, District Judge.

The demurrers will be overruled. As to count 2, the charge is that the defendant knowingly and unlawfully represented himself to be a citizen-of the United States without having been duly admitted. This charge is plainly not properly made upon the facts shown. While good in form, it is inconsistent with the situation shown by the other counts. The order of the court, the accompanying affidavits, and the certificate of citizenship were regular in form, and, until vacated and set aside, cannot be attacked collaterally, even on a criminal charge. The defendant is a citizen so far as his papers go, and these papers were “duly” obtained so far as their form is concerned. The provisions of section 5438, Rev. St. [U. S. Comp. St. 1901, p.3670], do not meet the situation shown in the count. The word “duly” applies to regularity and compliance with requirements, rather than to the truth of the facts set forth.

Count 2 should be dismissed, and as to counts 1 and 3 the defendant must plead; but may have a bill of particulars as to the illegal use.