48&

FEDERAL REPORTER,

vol. 65.

in this matter, and which I cannot disregard, is the opinion of the supreme court in the case of U. S. v. Cruikshank, 92 U. S. 557, wherein the court say:
"In criminal cases, prosecuted under the laws of the United States, the achas the constitutional right 'to be informed of the nature and cause of the accusation.' * * · In U. S. v. Mills, 7 Pet. 142, this was construed to mean that the indictment must set forth the offense 'with clearness and aJll hecessary certainty. to apprise the accused of the crime with which he stands charged'; and in U. S. v. Cook, 17 Wall. 174. that 'every ingredient of which the offense is composed must be accurately and clearly alleged.' It is an elementary principle of criminal pleading that where the definition of an offense. whether it be at common law or by statute, includes generic terms, it is not sufficient that the indictment shall charge the offense in the same generic terms as in the definition; but it must state the species,-lt must descend to particulars. * · * 'rhe object of the indictment is-First, to furnish the accused with such a description of the charge against him as will enable him to make his defense, and avail himself of his conviction or acqUittal for protection against a further prosecution for the same. cause; and, second, to inform the court of the facts alleged, so that it may decide whether they are sufficient in law to support a conviction, if one should be had. For this, facts are to be stated, not conclusions of law alone. A crime is made up of acts and intent; and these must be set forth in the indictment with reasonable particularity of time, place, and circumstances."

So, in this case, the scheme which the government alleges to be a lottery should be set forth with partioularity, in order to enable the court to judge whether it is in fact a lottery or not; and, further,. to enable the defendant, if arranged subsequently for this offense, to say that "the particular scheme which is set forth in the indictment and shown upon the record is the identical one for which I was formerly put in jeopardy; and therefore I plead it as a bar against the charge." I will sustain the demurrer.

UNITED STATES v. GREVE. (DistrIct Court, E. D. Missouri, E. D. November 15, 1894.) No. 3,860. 1.
CRIMINAL PLEADING-SUFFICIENCY OF INDICTMENT-SEC'I'ION

An indictment under section 5209, Rev. St. U. &., for embeZZlement, which charges that the defendant did have and receive "certain of the moneys and funds of said national banking association of the amount and value of $5,723.93," is defective in not stating with sufficient definiteness what the property was which defendant is accused of misappropriating, "funds" being a word including several species of property.
2.

SAME.

U. S.

5209,

REV. ST.

Whether an indIctment which charges that the defendant "wrongfully and unlawfully embezzled and converted to his own use" certain property. "with the intent then and there to injure," etc., but does not charge that the acts were "feloniously" done, is sufficient under section 5209, Rev. St. U. S., quaere.

This was an indictment against E. H. GreVe for violation of section 5209, Rev. St. U. S. Defendant demurs to the indictment. Wm. H. Clopton, U. S. Atty. Lee & McKeighan and D. P. Dyer, for defendant.

UNITED STATES V. GREVE.

489

PRIEST, District Judge (lJrally). In this case I have been com· pelled with great haste to reach a determination upon the demurrer to the indictrnent. Of course, a trial judge cannot, because of the pressing nature of his duties, give the same deliberate consideration to a case that is possible for an appellate tribunal. I think, in cases of this character, however, where the court entertains a substantial doubt as to the validity of an indictment, a demurrer ought to be sustained, because the error can at such a stage of the proceedings be remedied with less cost, and much more easily, than at any other. The defendant in this case, a clerk in the employment of the Fourth National Bank of St. Louis, is charged with having wrongfully and unlawfully embezzled and converted to his own use "certain of the moneys and funds of said national banking association of the amount and value of fifty-seven hundred and twenty-three dollars and ninetythree cents ($5,723.93)," which came into his custody as such clerk. There are two counts. The second alleges that he "wrongfully and unlawfully embezzled and converted to his own use moneys and funds of said bank of the amount and value of forty-one hundred and nine dollars and twenty-one cents ($4,109.21)." The sufficiency of both counts of the indictment is questioned by demurrer upon two grounds: First, that it is not charged that the acts were feloniously done; second, that "the moneys and funds" are not described with sufficient certainty. As to the first ground. At this time, and upon the brief consideration I have been able to give to the subject, I am not prepared to hold that the indictment must charge that the embezzlement-or conversion was felonious. It would unquestionably be the safest practice. It is seriously debatable whether an indictment omitting that word or its necessary and full equivalent is not defective. The federal courts, it is true, do not deal in their criminal jurisdiction with common-law offenses. They only recognize such as are created and defined by congress within its constitutional authority. However, in the enactment under consideration, congress has employed the word "embezzlement," and being technical, it must bear in the context that technical signification which it has usually borne, and. H it be a complex or component word, comprehending in the form of definition an offense, in charging such an offense by indictment the several elements must be separated, and specifically averred. Embezzlement, in its technical sense, and with respect to such punishment as the statute under consideration prescribes, most usually means a felonious appropriation by a servant of his master's property while it is in his keeping; and "felonionsly" means with a deliberate intent to do a wrongful act. It is true, the indictment here ,charges that the embezzlement was done with "the intent then and there to injure," etc., but this does not express precisely the same meaning as "feloniously," because in the latter the element of deliberation is embraced. There would be no tautology in using both expressions. As to the second ground, the language of the indictment is that "the defendant did have and receive," etc., "certain of the moneys and funds of said national banking association of the amount and:value

490

Jl'EDERAL REPORTER,

vol. 65.

of fifty-seven hundred and twenty-three dollars and ninety-three cents ($5,723.93)." It is a question whether this is not too indefinite, as failing to state the kind of money embezzled,-that is, whether moneys of the United States or of some other nation; but it is not necessary to hold thus narrowly. The charge is the embezzlement of moneys and funds. The words "moneys and funds" are not of identical meaning. "Funds" includes moneys, and much more, such as notes, bills, checks, drafts, stocks, and bonds. Now, what was intended by the phrase "moneys and funds"? Was it intended to say "moneys and moneys"? The natural interpretation of the phrase is "moneys and some· other species or character of funds." The word "funds" is not used in the alternative as a synonym. It is used in the conjunctive. Its function is, as no doubt the purpose of its use was, to add something to the term "moneys." The charge, then, is, in effect, that defendant did have and receive, etc., moneys and other funds, etc. Now, is this sufficiently definite? In the case of People v. Cohen, 8 Cal. 4:2, it is there said:
"There is another objection to the indictment, which is fatal. It does not state what was the property converted. The language is, 'four hundred thousand dollars, moneys, goods, and chattels.' How can the defendant know what he is charged With, or how prepare for his defense? How much money, what goods, and what chattels?"

If, in the case at bar, only money was embezzled, the indictment should charge the embezzlement of money only. If money and other funds were embezzled, the amount and value of the several species of the property taken should be stated. The words "and funds" cannot be rejected as surplusage, for the amount and value stated in the indictment applies to moneys and funds jointly, and, rejecting either, there is no suggestion in the indictment as to the amount or value of the other. The demurrer will be sustained.

UNITED STATES v. HARTMAN. (District Court, E. D. Missouri, E. D. November 8,1894.) No. 3,847.
CRIMINAL LAw-SEc'rION

The offense defined in the first clause of section 5421, Rev. St., relating to falsely making, altering, forging, or counterfeiting any deed, · · · certificate, · · · or other writing, for the purpose of obtaining · · · from the government any sum or sums of money, includes not only the technical execution of such an instrument, but the making of an affidavit or certificate which is genuine itself, but contains false statements.

5421,

REV. ST.

U.

S.-ELEMENTS OF THE OFFENSE.

was an indictment against A. K. Hartman for a violation of section 5421, Rev. St. U. S. Defendant demurs to the indictment. Wm. H. Clopton, Dist. Atty.; for the United States. Wm. H. Kinsey, for defendant. PRIEST, District Judge. There are two counts to the indictment in this cause, each of. which is challenged by a demurrer. In the first