United States v. Frederick, 50 F. Supp. 769 (S.D. Tex. 1943)

*770 Douglas W. McGregor, U. S. Atty., and Miles L. Moss and W. F. Leigh, Asst. U. S. Attys., all of Houston, Tex., for plaintiff.

C. F. Tucker and J. A. Copeland, both of Houston, Tex., for defendant.

KENNERLY, District Judge.

This case arises under the Nationality Code contained in the Nationality Act of 1940, Sections 501 to 907, 8 U.S.C.A. The portion of the Act which is pertinent is part of Section 746, 8 U.S.C.A., reading as follows:

"(a) It is hereby made a felony for any alien or other person, whether an applicant for naturalization or citizenship, or otherwise, and whether an employee of the Government of the United States or not

"(18) Knowingly to falsely represent himself to be a citizen of the United States without having been naturalized or admitted to citizenship, or without otherwise being a citizen of the United States."

Defendant is charged in Count One of the indictment with having knowingly, wilfully, unlawfully and falsely represented himself to be a citizen of the United States "in applying for a poll tax," etc., and in Count Two of the indictment with having knowingly, wilfully, unlawfully and falsely represented himself to be a citizen of the United States "in applying for a ballot to vote," etc.

The indictment, which is not well worded, was not attacked either by demurrer, motion to quash, or motion for bill of particulars, but defendant has pleaded not guilty thereto.

It is undisputed that defendant was on the dates charged in the indictment (December 27, 1941, and July 25, 1942), and is now, an alien.

1. The indictment in the Second Count charges that defendant knowingly, wilfully, unlawfully and falsely represented himself to be a citizen of the United States before an Election Judge of Precinct No. One of Harris County, Texas, in applying for a ballot to vote.^[1] Presumably a voting precinct of Harris County, Texas, of which there are more than a hundred, is meant. The evidence shows that Voting Precinct No. One is located in the heart of the City of Houston, Texas, and there is no evidence whatever that defendant made any representations to the Election Judge of that precinct or that he applied to him for a ballot to vote at any time. There is evidence, admitted over defendant's objections, that defendant offered to vote, obtained a ballot to vote, but did not in fact vote in the Democratic Primary Election held July 25, 1942, in Voting Precinct No. 81 in Harris County, Texas, which is ten or fifteen miles from Voting Precinct No. One.

Had the Government been content to charge defendant in the language of the Statute, with knowingly and falsely representing himself to be a citizen of the United States, without pointing out the occasion, time, and place, when, and the person to whom he so represented himself, defendant would have been entitled to require the filing of a bill of particulars setting forth such matters. Having alleged that defendant made such representations before an Election Judge of Precinct No. One in Harris County, Texas, defendant may not be found guilty under such count upon proof that such representations were made before the Election Judge of Precinct No. 81, an entirely different person, in an entirely different precinct. While the cases on the point are numerous and in much conflict, I think the weight of authority sustains this view. Defendant is found *771 not guilty under Count Two of the indictment.

2. The indictment in the First Count charges that defendant knowingly, wilfully, unlawfully and falsely represented himself to be a citizen of the United States before a Deputy Collector and Assessor of Taxes of Harris County, Texas, in applying for a poll tax, etc.^[2]

The evidence shows that on December 27, 1941, defendant presented himself before a Deputy Collector and Assessor of Taxes of Harris County, Texas, for the purpose of paying, and he paid, his poll tax, amounting to One and 50/100 Dollars ($1.50). And that there was issued to him a poll tax receipt, reading as follows:

            "Precinct  Page ---- Line ---- Poll Tax Receipt     No. 9817
             Number          State of Texas, County of Harris
              81                              Date 12-27-1941
                        Duplicate
                         1941
                        Received of Paul Frederick
                        Address   Rt. 5  Box 1136.
                                   Years
                        Age ........  42 Occupation     Tool Maker
            Length    | State ......  11 Birthplace     Germany
              of     
The evidence is convincing, and I find that defendant, in applying for such poll tax, when he paid such poll tax and obtained such poll tax receipt, and in order to obtain same, knowingly and falsely represented himself to be a citizen of the United States.
Under the Laws of Texas, only citizens of the United States who have paid a poll tax may vote. Aliens may not vote. Articles 2954, 2955, and 3004, Vernon's Annotated Civil Statutes of Texas. Armed with the poll tax receipt which was issued to him, defendant, although he was not a citizen, could probably have voted  but illegally  in various elections in Texas during the year 1942. Had he not represented to the Deputy Collector and Assessor that he was a citizen of the United States, there would have been issued to him a poll tax receipt showing him to have been an alien, and with the word "Alien" printed in red ink thereon. Article 2970, Vernon's Civil Statutes of Texas. He probably would have found it impossible or difficult to  illegally  vote with such a receipt.
I think the facts sustain the Government's contention under Count One of the indictment.
3. But defendant insists that he should not be found guilty under Count One of the indictment, because, as he says, the quoted provisions of the Nationality Act are invalid. He points to the old law, Section 141, Title 18, U.S.C.A.,[3] and says, and truly, *772 that there the false representation as to citizenship must have been made for some fraudulent purpose, and that Congress may not make a simple false claim of citizenship without a fraudulent or some similar purpose an offense.
The cases are uniform that Congress may exclude aliens from the United States, prescribe the conditions under which they may enter, provide for their supervision, regulate their conduct, and fix their rights while here. The quoted provisions making it an offense for an alien to make false representations as to his citizenship were doubtless enacted to prevent aliens from misleading the law enforcement officers as to their status and to aid them in enforcing the law. United States v. Balint, 258 U.S. 250, 254, 42 S. Ct. 301, 66 L. Ed. 604. It does not come within the ruling in Wong Wing v. United States, 163 U.S. 228, 16 S. Ct. 977, 41 L. Ed. 140. It violates no provision of the Constitution. Turner v. Williams, 194 U.S. 279, 292, 24 S. Ct. 719, 48 L. Ed. 979, and cases there cited, and which follow. I think it is valid.
I find defendant guilty under Count One of the indictment.
NOTES
[1]  The Second Count of the Indictment is as follows:
"And the Grand Jurors aforesaid, upon their oaths aforesaid, do further present:
"That on or about July 25, 1942, one Paul Franz Frederick, alias Paul Fredrick, in Harris County, Texas, circuit, district and division aforesaid, and within the jurisdiction of this Court, did knowingly, wilfully and unlawfully falsely represent himself to be a citizen of the United States, before an Election Judge of Precinct Number One of Harris County, Texas, in applying for a ballot to vote, although he, the said Paul Franz Frederick, alias Paul Fredrick, well knew that he was not then and there a citizen of the United States; contrary to the form of the statute in such case made and provided, and against the peace and dignity of the United States of America."
[2]  The First Count of the Indictment is as follows: "That on or about December 27, A.D.1941, one Paul Franz Frederick, alias Paul Fredrick, in Harris County, Texas, circuit, district and division aforesaid, and within the jurisdiction of this Court, did knowingly, wilfully and unlawfully falsely represent himself to be a citizen of the United States, before a Deputy Collector and Assessor of Taxes of Harris County, Texas, in applying for a poll tax, although he, the said Paul Franz Frederick, alias Paul Fredrick, well knew that he was not then and there a citizen of the United States; contrary to the form of the statute in such case made and provided, and against the peace and dignity of the United States of America."
[3]  Section 141, Title 18, U.S.C.A., is as follows: "Falsely claiming citizenship. Whoever shall knowingly use any certificate of naturalization heretofore or which hereafter may be granted by any court, which has been or may be procured through fraud or by false evidence, or which has been or may hereafter be issued by the clerk or any other officer of the court without any appearance and hearing of the applicant in court and without lawful authority; or whoever, for any fraudulent purpose whatever, shall falsely represent himself to be a citizen of the United States without having been duly admitted to citizenship, shall be fined not more than $1,000, or imprisoned not more than two years, or both."