BUCKNER

v.

HUDSPETH, WARDEN

PHILLIPS, Circuit Judge.

Walker B. Buckner, hereinafter called petitioner, was charged by an indictment returned in the District Court of the United States for the Eastern District of Louisiana with passing, uttering, and publishing a forged, counterfeited, and altered obligation of the United States. He entered a plea of guilty thereto and was sentenced to serve a year and a day in the United States Penitentiary at Atlanta, Ga., and pay a fine of $115. The term of imprisonment was to commence on March 22, 1933, the date the sentence was imposed.

An indictment against petitioner containing four counts was returned in the District Court of the United States for the Northern District of Georgia. The first count charged that petitioner, with intent to defraud the United States and for the purpose of obtaining money from the Treasurer of the United States, did falsely make, forge, and counterfeit a certain writing purporting to be signed by one A. Gyall and payable to R. G. Taylor and that such writing purported to be a check drawn on the Treasurer of the United States for the payroll of the Coast and Geodetic Survey. The second count charged that petitioner with-intent to defraud the United States did utter and publish the writing described in the first count as a true and genuine obligation of the United States. The third count charged that petitioner, with intent to defraud the United States and for the purpose of obtaining money from the Treasurer of the United States, did make, forge, and counterfeit a certain writing purporting to be signed by one A. Gyall and payable to R. G. Taylor and that such writing purported to be a check drawn on the Treasurer of the United States for the payroll of the Coast and Geodetic Survey. The fourth count charged that petitioner with intent to defraud the United States did utter and publish the writing described in the third count as a true and genuine obligation of the United States.

Petitioner entered a plea of guilty to the indictment and was sentenced to imprisonment for a term of ten years and to pay a fine of $1000, the sentence of imprisonment to commence on the date petitioner was committed to jail or other place of detention to await transportation to the penitentiary.

He was committed to the United States Penitentiary at Atlanta, Ga. While there incarcerated he filed a petition for a writ of habeas corpus in the United States District Court for the Northern. District of Georgia. A judgment denying the writ was affirmed on appeal. See Buckner v. Aderhold, 5 Cir., 73 F.2d 255, 256. In that case, the petition challenged the sufficiency of the indictment returned in the Georgia District on the ground Gyall was not authorized to sign the checks and they were not obligations of the United States.1

*395Thereafter, petitioner was transferred to the United States Penitentiary at Leavenworth, Kansas. While there confined he filed a petition for habeas corpus in the United States District Court for the District of Kansas. This is an appeal from a j udgment denying the writ.

In his petition he challenged the sufficiency of the indictment in both cases. The sentence under the first indictment having been fully served, the question as to the sufficiency of that indictment is moot.

Petitioner asserts that Gyall was not authorized to sign the checks described in the several counts of the indictment returned in the Georgia District, that such fact refutes an intent to defraud the United States, and that the checks were not obligations of the United States, and, therefore, counts one and three fail to charge offenses under 18 U.S.C.A. § 262, and counts two and four fail to charge offenses under 18 U.S.C.A. § 265.

18 U.S.C.A. § 261 in part reads as follows :

“The words 'obligation or other security of the United States’ shall be held to mean * * * checks, or drafts for money, drawn by or upon authorized officers of the United States.” (Italics ours.)

The checks involved in the several counts of the indictment purported to be drawn upon the Treasurer of the United States and were, therefore, drawn upon an authorized officer of the United States and constituted an obligation of the United States.

The contention that there was no intent to defraud the United States, because the person whose name purported to be signed to the check was a fictitious person and was not authorized to draw the checks is foreclosed by the averments of the indictment and petitioner’s plea of guilty thereto. See Buckner v. Aderhold, supra. Furthermore, to constitute forgery the name alleged to be forged need not be that of any person in existence. It may be wholly fictitious if the instrument is made with intent to defraud and shows on its face that it has sufficient efficacy to enable it to be used to the injury of another.2

Moreover, counts one and three of the indictment sufficiently charged an offense under 18 U.S.C.A. § 73 and the sentence was within the penalty provided for a violation of that section. See Buckner v. Aderhold, supra; Prussian v. United States, 282 U.S. 675, 679, 680, 51 S.Ct. 223, 75 L.Ed. 610; Moshcik v. United States, 5 Cir., 63 F.2d 533.

Petitioner asserts that the indictment was predicated on 18 U.S.C.A. §§ 262 and 265, and that the sentence was imposed under those sections, whereas the indictment charged an offense under 18 US.C.A. § 73. He predicates this on the endorsement affixed to the indictment and the clerk’s marginal notes on the sentence. The endorsement on the indictment is no part of the indictment and neither adds to nor weakens the legal force of its averments. If the indictment charged an offense under Section 73, supra, it. is sufficient, although the United States Attorney in drawing the indictment may have intended to charge an offense under Sections 262 and 265, supra. Williams v. United States, 168 U.S. 382, 389, 18 S.Ct. 92, 42 L.Ed. 509.

The sentence proper makes no reference to the penal sections under which it was imposed. The references to Sections 262 and 265, supra, are set forth in a marginal note, presumably written by the clerk of the court. They are no part of the sentence.

Moreover, we hold that the indictment sufficiently charged offenses under Sections 262 and 265, supra.

It follows that the sentence imposed was valid. The judgment is affirmed.