Lane

(dissenting).

I dissent. The court is refusing to consider the merits of a criminal appeal on technical grounds of exclusion of evidence, not even passed upon by the District Court. In so doing the text of the opinion does not state the major issue on the merits urged by appellant, much less measure the admissibility of the rejected testimony with reference to that issue.

To constitute the crime charged against appellant, her receipt of the checks must be “with intent to defraud the United States.” Intent is of the essence of the crime. Without it there is no fraud. Obviously, a criminal intent is a mental condition, provable, as other mental conditions, by the statements of the person charged with having it.

Appellant’s defense on the facts is that on the major fact of her mental condition of intent to defraud she had none, because she believed that she was not married during the whole period she was receiving the checks.

Appellant contends that she was duped into a marriage ceremony with Lane, who represented himself as an agent of the Federal Bureau of Investigation, during the course of a fraudulent scheme to acquire her property. The marriage was not consummated.…

Appellant, Denzel Lane (formerly Denzel Rider), was indicted for violating § 14 of Title I (§§ 1-20) of the Act of March 20, 1933, c. 3, 48 Stat. 10 , 1 which provides: “That whoever shall obtain or receive any money, check, or pension under * * * this title, * * * or regulations issued under [this title], without being entitled to the same, and with intent to defraud the United States or any beneficiary of the United States, shall be punished by a fine of not more than $2,000, or by imprisonment for not more than one year, or both.” By § 9 of the Act of August 16, 1937, c. 659, 50 Stat. 662 , 2 § 14 of the Act of March 20, 1933, was made applicable to claims for compensation under the Act of June 28, 1934, c. 867, 48 Stat. 1281 , as amended.

The indictment was in six counts. Count 1 alleged that on or about June 30,. 1940, in the District of Arizona, appellant “did wrongfully, unlawfully and fraudulently receive compensation from the United States as the unremarried widow of one Arthur C. Rider, deceased, which said compensation was received as follows, to-wit: that the said defendant [appellant] did then and there wrongfully, unlawfully and fraudulently receive a check duly…