seems to be claimed by the plaintiff in error, but on the contrary is in accord with what actually was there decided. Other questions are discussed in the briefs, but as they are not Federal but essentially local they cannot be reexamined by us.

Judgment affirmed.

LAMAR v. UNITED STATES.

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT.

No. 895. Argued April 4, 1916.-Decided May 1, 1916.

The Circuit Court of Appeals has no power to compel a party, who has prosecuted both a direct appeal from this court under § 238, Judicial Code, and a writ of error from the Circuit Court of Appeals, to elect which method he will pursue, and, in default of his withdrawing the direct appeal, to dismiss the writ of error.

While the general rule, when this court reverses a decision of the Circuit Court of Appeals wholly on the question of its jurisdiction, is to remand the case to that court without passing upon the merits, this court has the power to, and, in exceptional cases such as the present, will, determine the merits.

While a penal provision may not be enlarged by interpretation, it must not be so narrowed as to fail to give full effect to its plain terms, as made manifest by its text and context.

A member of the House of Representatives is an officer of the United States within the meaning of § 32 of the Penal Code. Section 32 of the Penal Code prohibits and punishes the false assuming, with the intention to defraud, to be an officer or employee of the United States; and also the doing in the falsely assumed character of any overt act to carry out the fraudulent intent whether it would have been legally authorized had the assumed capacity existed or not. The indictment in this case clearly charges the fraudulent intent under §32 of the Penal Code and is sufficient under § 1025, Revised Statutes.

There was proof in this case of intent to defraud, and to establish

criminality under § 32, Penal Code; and there was no error in refusing an instruction to acquit and in submitting the case to the jury. There was no lack of jurisdiction of this case in the District Court

because the trial was presided over by a judge of a different district assigned to the court for trial conformably to the act of October 3, 1913, c. 18, 38 Stat. 203.

THE facts, which involve the jurisdiction of this court, and of the Circuit Court of Appeals, the construction of § 32 of the Penal Code, and the power of assignment of a judge of one District to preside over the District Court of another district under the Act of October 3, 1913, are stated in the opinion.

Mr. A. Leo Everett and Mr. Francis L. Kohlman, with whom Mr. H. B. Walmsley was on the brief, for David Lamar:

A congressman is not an officer of the United States. Bowen's Documents of the Constitution; 1 Farrand Records of the Fed. Conv., p. 376; 3 id., pp. 597-599-620; Blount's Case, Wharton's St. Trials, 200; Story's Comm. on Const., 1st ed., § 791; Tucker on Const., § 199; Cong. Rec., 1914, p. 8831; H. R., 63d Cong., 2d Sess., Rep. No. 677; United States v. Germaine, 99 U. S. 508; United States v. Mouat, 124 U. S. 303; United States v. Smith, 124 U. S. 525; Burton v. United States, 202 U. S. 344; Kelly v. Common Council, 77 N. Y. 503; N. Y. Public Officer's Law, § 2, Art. 1; Am. & Eng. Enc., 2d ed., tit., "Public Officers," p. 322; United States v. Wiltberger, 5 Wheat. 76; Hackfield v. United States, 197 U. S. 442; Martin v. United States, 168 Fed. Rep. 198; United States v. Barnow, 239 U. S. 74; United States v. Ballard, 118 Fed. Rep. 757; Mackey v. Miller, 126 Fed. Rep. 161.

It was not charged or proven that the defendant pretended to act "under the authority of the United States." United States v. Curtain, 43 Fed. Rep. 433; United States v. Bradford, 53 Fed. Rep. 542; United States v. Taylor, 108 Fed. Rep. 621; United States v. Ballard, 118 Fed.

Rep. 757; United States v. Brown, 119 Fed. Rep. 482; United States v. Farnham, 127 Fed. Rep. 478; Littel v. United States, 169 Fed. Rep. 620; United States v. Barnow, 239 U. S. 74.

The indictment is defective in failing to describe the circumstances of the offense. United States v. Carll, 105 U. S. 611; Evans v. United States, 153 U. S. 584; United States v. Hess, 124 U. S. 483; Keck v. United States, 172 U. S. 434; Moore v. United States, 160 U. S. 268; Bartell v. United States, 227 U. S. 427; Martin v. United States, 168 Fed. Rep. 198.

There was no proof of an intent to defraud.

The District Court in which the defendant was tried under an indictment charging him with the commission of a crime, had no jurisdiction in view of the provisions of the Sixth Amendment.

The designation of a judge from a district in one circuit to hold a district court in another circuit trespasses upon the executive power of appointment in that it permits a United States District Judge to hold court in a district to the court of which he was not nominated by the President and confirmed by the Senate.

This court will at all times and may upon its own motion inquire into the jurisdiction of the court below. Ball v. United States, 140 U. S. 118; Chicago &c. Ry. Co. v. Willard, 220 U. S. 419; Ex parte Lange, 18 Wall. 163; Ex parte Nielsen, 131 U. S. 176; Ex parte Seebold, 100 U. S. 371; Fore River Ship Co. v. Hagg, 219 U. S. 275; Jud. Code, § 18; Judiciary Law, § 2; Kentucky v. Powers, 201 U. S. 1; Kansas v. Colorado, 200 U. S. 46; Marbury v. Madison, 1 Cranch, 138; McDowell v. United States, 159 U. S. 596; Mackey v. Miller, 126 Fed. Rep. 161; M. C. L. Ry. v. Swann, 111 U. S. 379; Nashville v. Cooper, 6 Waters, 247; Norton v. Shelby County, 118 U. S. 448; Sheldon v. Sill, 8 How. 441, No. 8448; 2 Story on Const., p. 1557; Teel v. Chesapeake Ry., 204 Fed. Rep. 918.

Argument for the United States.

241 U. S.

The Solicitor General, with whom Mr. Robert Szold was on the brief, for the United States:

Section 32, Crim. Code, prohibits the false assumption or pretense to be a member of Congress.

The legislative history of the act reënforces this view.

A member of the House of Representatives is an officer of the Government of the United States and acting under its authority.

Members of Congress hold "office," and a member of Congress is an "officer." 2 Bouvier's Law Dict., p. 540, ed. of 1897; Swafford v. Templeton, 185 U. S. 487, 492; The Floyd Acceptances, 7 Wall. 666, 676; United States v. Maurice, 2 Brock. 96, 102.

The Revised Statutes of the United States recognize members of Congress as such officers. Revised Stat., §§ 1756, 1759, 1786, 2010.

Decisions of state courts and state statutes recognize members of the state legislatures as "state officers." The analogy is complete. Morril v. Haines, 2 N. H. 246, 251; Shelby v. Alcorn, 36 Mississippi, 273, 291; State v. Dillon, 90 Missouri, 229, 233; Rev. Stat., N. Y., 1829, v. 1, p. 95.

A member of Congress is a Federal and not a state officer. Eversole v. Brown, 21 Ky. Law Rep. 925, 927; State v. Gifford, 22 Idaho, 613, 632-633; State v. Russell, 10 Ohio Dec. 255, 264.

Other decisions of this court do not contravene the proposition here contended for.

It is not necessary that defendant's pretense be to act lawfully under the authority of the United States. Littell v. United States, 169 Fed. Rep. 620; United States v. Ballard, 118 Fed. Rep. 757; United States v. Barnow, 239 U. S. 74.

The indictment sufficiently particularizes the circumstances of the offense.

The defendant's objection is not one of substance, but

of form. Evans v. United States, 153 U. S. 584; United States v. Barnow, supra.

All substantial rights of defendant were observed. Bartell v. United States, 227 U. S. 427; Durland v. United States, 161 U. S. 306.

Section 1025, Rev. Stat., controls.

Armour Packing

Co. v. United States, 209 U. S. 56; Ledbetter v. United States, 170 U. S. 606.

The proof of the intent to defraud was ample.

MR. CHIEF JUSTICE WHITE delivered the opinion of the court.

Charged in the trial court (Southern District of New York) by an indictment containing two counts, with violating § 32 of the Penal Code, the petitioner was convicted and on December 3, 1914, sentenced to two years' imprisonment in the penitentiary. The trial was presided over by the District Judge of the Western District of Michigan assigned to duty in the district conformably to the provisions of § 18 of the Judicial Code as amended by the Act of Congress of October 3, 1913 (c. 18, 38 Stat. 203). To the conviction and sentence in January following error was directly prosecuted from this court, the assignments of error assuming that there was involved not only a question of the jurisdiction of the court as a Federal court, but also constitutional questions. For the purpose of the writ one of the district judges of the Southern District of New York gave a certificate as to the existence and character of the question of jurisdiction evidently with the intention of conforming to § 238 of the Judicial Code.

After the record on this writ had been filed in this court a writ of error to the conviction was prosecuted in May, 1915, from the court below. In September following that court, acting on a motion to dismiss such writ of error on