Chow Bing Kew, hereafter Chow, appeals from his conviction in the District Court for the Northern District of California, Northern Division, of a violation of Section 911 of 18 U.S.C. in January, 1952 and of a violation of Section 1001 in April, 1953. He was sentenced to 18 months in prison for each of the two offenses, the sentences to run concurrently, and fined $1,000 on the first and $5,000 on the second. The case was tried without a jury, and no findings were requested. F.R.Crim.P., rule 23(c), 18 U.S.C.

The indictment, consisting of two separate counts, one charging the 1952 violation of Section 911, Title 18 U.S.C. and the other 1953 violation of Section 1001, Title 18 U.S.C., reads as follows:

Since no one is named as committing the crime in the second count, the district court had no jurisdiction in personam to try Chow. Undoubtedly it was intended by the phrase “(hereafter called said defendant)” in the first count that the words “said defendant” would be inserted before the words “did unlawfully” etc., of the second count. The trial court cannot supply the omission and thus create jurisdiction. Nor can the defendant in effect indict himself by treating the second count as if he were therein named.

The judgment on this second count is reversed and it is ordered dismissed.

1. Did Chow make a Willfully False Representation of Citizenship in Violation of Section 911, Title 18 U.S.C.?

Section 911, as far as pertinent, provides :

In construing this statute it is pertinent that it was an amendment to a prior statute which had made wilfulness something that had to do with a wrongful purpose. That statute reads in pertinent part:

The precise meaning of the word “willfully” depends upon the context in which it is used. In view of the amendment of the above quoted statute from which Section 911 was derived, we think it clear that the government in a prosecution under Section 911 need not show that the misrepresentation was made for a fraudulent purpose, and that “willfully” as used in this section means only that it must be proved beyond a reasonable doubt that the misrepresentation was voluntarily and deliberately made.

Appellant’s contention is that the prosecution failed to maintain its burden of proof on this issue since it offered no direct evidence that he “willfully” signed a printed renewal application for a state license costing but five dollars to sell beverages at a store in Oakley owned by himself and other partners.

This application contained twelve questions, the eighth being, “Are you a citizen of the United States?”, to which the answer typed in on the application form when appellant signed it is “yes”.

The application appellant signed contains the following:

The uncontradicted testimony summarized by the court is that the appellant is:

Also uncontradicted is the testimony of appellant’s agent that in the course of his business, appellant signs 200 to 300 business documents a week.

One Helton, who was supervisor of the partnership’s many stores, seeking a renewal of the five dollar state license to sell alcoholic beverages at the partnership’s Oakley store applied therefor to the office of the State Board of Equalization at Martinez. Helton testified that a clerk in the office of the Board typed up an application form to be signed by appellant, and advised Helton that the form required the verified signature of a member of the partnership. Although California law requires that the names of all partners appear on the form, only appellant’s name was typed thereon by the clerk who further typed “yes” on the form in answer to the printed question. “Are you a citizen of the United,States?” Helton stated he then took the filled-in application to appellant’s office where, without reading it, appellant signed it. Thereafter Helton took it to a notary who signed the form’s verification though appellant never appeared before him. Helton thereafter mailed it to Sacramento.

The above testimony, unshaken on cross-examination, might nevertheless be disbelieved by the judge and the question would then arise whether eliminating that testimony the mere signed document itself proved willfulness. We think under the above cases that it does not.

The government contends, however, that the record contains ample evidence of appellant’s other misrepresentations concerning his citizenship which is admissible to negate appellant’s contention that the misrepresentation with which he is here charged resulted from mere carelessness and inadvertence.

The history of appellant’s career in this country as it appears in the record reveals that appellant’s false statement as to his citizenship in the application for the license was neither the first nor the last occasion on which appellant misrepresented not only his citizenship but his identity.

In 1929 appellant, born in China, was legally admitted to this country for permanent residence. Shortly after his arrival he met a Chinese United States citizen named Charlie Wah You. Appellant was understandably anxious to become a citizen and although it was explained to him that this was impossible, Charlie Wah You offered to consult an attorney to see what could be done. An attorney was retained, and on the basis of the perjured testimony of Charlie Wah You an order issued from the California Superior Court establishing appellant’s birth in California as the son of Charlie Wah You. It appears that appellant subsequently consulted another attorney concerning the legality of this arrangement. Both the attorneys involved and Charlie Wah You have since, died.

Thereafter appellant continued to' identify himself under his “adopted”' name as Donald or Sam Wah You or* Wahyou. Under this name in 1947 he obtained, as a native citizen, a United States passport to visit Hong Kong.. Both before and after the violation of' Section 911 with which he is here charged, appellant in applications for life insurance represented himself as having-been born in Sacramento, California.

Since the fact that appellant, signed the license application is not disputed, and the only question here concerns his willfulness in so doing, it is; clear that this evidence of the other-transactions in which he made similar misrepresentations was properly admissible to negate his contention that he did so inadvertently. 2 Wigmore, Evidence § 302, (3rd ed. 1940); McCormick, Evidence § 164(1954).

Appellant contends that there is no finding as to his willfulness and that the court confined itself to a criticism of' his veracity in the following language:

In this he ignores the finding in the-; judgment and commitment that,

We conclude that this evidence-clearly supports the trial court’s conclusion that appellant willfully misrepresented his citizenship in signing the ap— plication, and appellant’s conviction on Count One is therefore affirmed.

Denial of Leave to File Second Petition for Rehearing.

Chow Bing Kew, hereafter Chow, now seeks leave to file a second petition for rehearing on the contention that the first count of the indictment fails to charge a crime in violation of 18 U.S.C.A. § 911 and hence, he contends, the court lacks jurisdiction to consider it. That count states:

Chow’s contention is that this count of the indictment fails to use the word “wilfully” and hence fails to state the crime under 18 U.S.C.A. § 911 which provides that:

Concerning the word “wilful” in a ■criminal statute the Supreme Court states in Screws v. United States, 325 U.S. 91 , at page 101, 65 S.Ct. 1031, 1035 , 89 L.Ed. 1495 :

The word “wilful” in the statute need not be repeated in the indictment, at least if the question is not raised in the court below or on appeal, if the “necessary facts” showing the “bad purpose” of the accused’s conduct “appear in any form, or by fair construction can be found within the terms of the indictment.” Hagner v. United States, 1932, 285 U.S. 427, 429, 433 , 52 S.Ct. 417, 420 , 76 L.Ed. 861 . See also, Kramer v. United States, 9 Cir., 166 F.2d 515 .

We think that by “fair construction” of the words of the indictment— that the accused “did knowingly and unlawfully falsely represent himself” — they clearly mean that he acted “wilfully” in making his false statement that he is a citizen of the United States.

This question has been considered by us repeatedly. In Nickell v. United States, 9 Cir., 161 F. 702, 706 , certiorari denied 214 U.S. 517 , 29 S.Ct. 699 , 53 L.Ed. 1064 , it was contended that the indictment failed to charge that the following acts were done wilfully as required by the statute:

This court held:

Chow contends that the Fifth Circuit has held otherwise in Pullen v. United States, 164 F.2d 756 . A charge was brought under a statute (then 18 U.S.C. § 52 ) making it an offense for any person, under color of law, wilfully to subject any person to the deprivation of any constitutional rights. The indictment charged only that the defendants, law officers, “did subject” a person to the deprivation of the right to be secure in his person. There was no allegation as in the instant case, relating to the intent or mental state of the defendants or from which it could be determined that the defendants’ acts were knowing, unlawful, deliberate, or other than inadvertent.

Chow also cites as a general rule the following from Marteney v. United States, 10 Cir., 218 F.2d 258 , 261:

In so doing he conspicuously omits the next cited opinion on which the court relies, namely, Hagner v. United States, 285 U.S. 427 , 52 S.Ct. 417 , considered supra, stating that allegations which are the equivalent of “willfulness” are sufficient.

Chow further contends that the indictment is fatally defective in failing' to state the person to whom the false' claim to citizenship was made, citing two-district court cases decided before 18 U.S.C.A. § 911 was amended to the present form. It then read:

The two cases, United States v. Weber, D.C., 71 F.Supp. 88 , 91 and United States v. Raymond, D.C., 37 F.Supp. 957 are based on the theory that because a statement defrauding some one is involved the person defrauded by believing the statement should be named. Since the element of fraud is not in the amended statute controlling here, there is no merit to the contention.

The motion for leave to file a second petition for rehearing is denied.

. F.R.Crim.P. rule 7(c) provides that “The indictment or information shall state for each count the official or customary citation of the statute, rule, regulation or other provision of law which the defendant is alleged therein to have violated.” [Emphasis supplied.] . See, e. g., Screws v. United States, 1945, 325 U.S. 91, 101 , 65 S.Ct. 1031 , 89 L.Ed. 3 .495; United States v. Illinois Central R. Co., 1938, 303 U.S. 239 , 58 S.Ct. 533 , 82 L.Ed. 773 ; United States v. Murdock, 1933, 290 U.S. 389 , 54 S.Ct. 223 , 78 L.Ed. 381 . . Depratu v. United States, 9 Cir., 1948, 171 F.2d 75 ; United States v. Franklin, 7 Cir., 1951, 188 F.2d 182 . . This is although the contention was not contained in his statement of points to be considered on appeal, nor in his briefs, nor in the hearing, nor in its petition for rehearing. . So also in Holsman v. United States, 9 Cir., 248 F. 193, 195 ; Cf. Johnston v. United States, 9 Cir., 145 F.2d 137, 138 . 1948 Revision, 18 U.S.C.A. § 242 .