and sentence imposed vulnerable to collateral attack. United States v. Gallagher, 3 Cir., 183 F.2d 342.
However, a person accused of crime cannot plead guilty to an offense which does not exist as a matter of law, or cannot vest in the District Court jurisdiction to impose judgment and sentence after a plea of guilty is entered to an indictment for a crime which does not exist under the laws of the United States.
The case of United States v. Gallagher, supra, is distinguishable from the instant case. In the Gallagher case the facts admitted by the plea of guilty to the indictment constituted a criminal offense. In the case at bar the plea of nolo contendere, which admitted the facts laid in the indictment, does not as a matter of law constitute a criminal offense.
In passing upon this question, the Court requested the Federal Bureau of Investigation to determine whether the defendant's real name was Harry B. Gallagher, or whether he was commonly known in the communities where he resided under the name of Harry B. Gallagher. He was indicted not only under the name of Harry B. Gallagher but under the following alias names: George Goodfellow, Harry Bradford Gallagher, Harry P. Clark and Harry F. Clark.
The certification of the Federal Bureau of Investigation indicates that the birth name of the defendant was Harry Bradford Gallagher although no birth certificate is available. Also, he has been commonly known as Harry B. Gallagher in the communities where he has resided, and with the military authorities and Veterans Administration as a result of his service in World War I.
No other conclusion can be reached but what the true name of the defendant was Harry B. Gallagher, or he was commonly known as Harry B. Gallagher.
As a result thereof, the check which was drawn on the Missouri bank was in his real or common name. The question has not been passed upon in the Third Circuit but I do not believe justified in adopting a different conclusion of the National Stolen Property Act, as it relates to the facts in the instant case, than that which prevails in the Fourth, Eighth and Ninth Circuits, unless I would be able to demonstrate that the construction was wrong or erroneous.
It is my judgment that the construction placed on the statute in those circuits should be accepted by this Court. It is, therefore, my conclusion that the National Stolen Property Act which denounces the transportation, or causing to be transported in interstate commerce with fraudulent intent, of any falsely made, forged, altered or counterfeited securities, does not make a criminal offense the transportation of checks drawn by the maker in his own name upon an existing bank in which the maker of said checks had a nonexistent bank account. Martyn v. United States, 8 Cir., 176 F.2d 609; Wright v. United States, 9 Cir., 172 F.2d 310; Greathouse v. United States, 4 Cir., 170 F.2d 512; United States v. Sheridan, 329 U.S. 379, 381, footnote 4, 67 S. Ct. 332, 91 L. Ed. 359.
It is possible, of course, that Congress, when it enacted the statute in question, may have intended that the statute would cover the transportation under such circumstances, but, if so, the language used did not adequately express that intent. It is elementary that a criminal statute must be strictly construed, and that criminal statutes should receive a uniform construction.
Unquestionably, the defendant could have been successfully prosecuted under the penal statutes in the state of Pennsylvania, but the facts do not constitute a criminal offense under the federal statute upon which the indictment was based. The sentence imposed was illegal and not authorized by law. The motion to vacate the sentence and judgment imposed is, therefore, granted and an appropriate order is entered.