The opinion of the court was delivered by: BYERS
The defendant has demurred to the indictment herein containing eleven counts, the odd numbered ones charging that on certain dates during the year 1943 he did "then and there unlawfully, knowingly, fraudulently and feloniously keep in his possession with intent to utter or publish as true" a given number of "certain falsely made, forged and counterfeited gasoline ration coupons being writings of the United States, to wit: * * * gasoline ration coupons of the 'T' Unit, each of said coupons purporting to be issued by the Office of Price Administration, which is an agency authorized and acting under the laws of the United States, the said gasoline ration coupons, 'T' Unit, being in the resemblance and similitude to true and genuine gasoline ration coupons of the United States, to wit: Office of Price Administration gasoline ration coupons of the 'T' Unit, issued by the said Office of Price Administration of the United States and one of which * * * was and is of the following tenor and effect, that is to say:
"'Permits Delivery of One T Unit of Gasoline This Coupon Detached at Time of Sale Office of Price Adm.'
* * * and the said defendant then and there well knowing the same to be falsely made, forged and counterfeited and intending then and there and thereby to defraud the United States; against the peace and dignity of the United States and contrary to the form of the statute in such case made and provided. (Title 18, United States Code, Section 72)."
The even numbered counts allege the passing of the said several groups of coupons on the various dates involved, upon the Shell Oil Company.
The indictment refers to six occasions between March 26, 1943, and April 10, 1943, when the defendant is said to have possessed varying numbers of these counterfeit coupons, 262 in all, and his passing of them on five occasions upon the Shell Oil Company which was his source of gasoline supply.
The challenge of the demurrer presents two contentions:
A. That the gasoline ration coupons are not public records or writings within the purview of the statute:
B. That the United States was not defrauded by the possession or the passing.
It appears that the defendant is the proprietor of a gasoline filling station, and since the allegations of fact in the indictment are taken as true, for present purposes, it is clear that he has been guilty of a deliberate effort to frustrate the government in the discharge of its complex and exacting duties in the supervision of the domestic economy of a country engaged in a war of survival.
If there were any latitude permissible in the examination and consideration of these legal questions, it must be evident that the defendant is not in a position to invoke it.
The presently material provisions of the statute follow:
"§ 72. (Criminal Code, section 28.) Making, forging, counterfeiting, or altering bonds, bids, or public records; transmitting such papers. Whoever shall * * * counterfeit * * * any bond, bid, proposal, contract, guarantee, security, official bond, public record, affidavit, or other writing for the purpose of defrauding the United States; or shall utter or publish as true * * * or have in his possession with the intent to utter or publish as true, any such false, * * * or counterfeited * * * public record, affidavit, or other writing, for the purpose of defrauding the United ...