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and seventy-seven, at said district, being then and there president of a certain national banking association then and there known and designated as the National Bank of the State of Missouri, in St. Louis,' which said association had been theretofore created and organized under and by virtue of an act of Congress, entitled · An Act to provide a national currency secured by a pledge of United States bonds, and to provide for the circulation and redemption thereof,' approved June third, in the year of our Lord one thousand eight hundred and sixtyfour, and which said association was then and there acting and carrying on a banking business in the city of St. Louis, in 'said district, under the said act of Congress and the acts amendatory thereof, did pay to a certain person, to the jurors afore said unknown, a large sum of money, to wit, twenty-four hundred dollars, out of the moneys and funds then and there belonging to and the property of said association, in the purchase by him, the said James H. Britton, from said unknown person, of a large number, to wit, forty certain shares of the capital stock of said association, which said shares of stock were then and there represented upon the books of said association to be the property of one Francis Fisher.
“And the jurors aforesaid, on their oaths aforesaid, do further present that the said James H. Britton, president as aforesaid, did then and there, by means of the payment aforesaid, in manner and form aforesaid, wilfully misapply the said sum of twenty-four hundred dollars of the moneys and funds as aforesaid of said association, with intent then and there, on the part of him, the said James H. Britton, to injure and defraud the said association and certain persons, to the jurors aforesaid unknown, contrary to the form of the statute of the United States in such case inade and provided, and against their peace and dignity."
The next following nineteen counts, numbered from 38 to 56, inclusive, are similar to count 37, and need not be set out.
The next succeeding counts, numbered from 57 to 76, inclusive, but excepting the seventy-fourth, are similar to count 37, except that they omit the averment that the misapplication was made with intent “to injure and defraud the said
association and certain persons to the jurors aforesaid unknown.” These counts aver no intent whatever. The seventyfourth count is similar to the thirty-seventh.
The next twenty counts, numbered from 77 to 96, inclusive, are in all respects similar to count 37, except that they contain the following additional averment, forming the conclusion of the first clause of the count, namely, “and which said shares of stock, so purchased as aforesaid, were then and there held by him, the said James H. Britton, in trust for the use of said association, and which said shares of stock were not purchased as aforesaid in order to prevent loss upon any debt theretofore contracted with said association in good faith."
The next twenty counts, numbered from 97 to 116, are all similar to count 96, except that they omit the averment that the misapplication of the funds of the association was with the intent “ to injure and defraud the said association and certain persons to the jurors aforesaid unknown." These counts charge no intent.
The count numbered 117 was similar to count 36, and count numbered 118 was similar to count 1.
As no division of opinion respecting count numbered 119 is certified, it is unnecessary to notice that count.
The defendant demurred to the indictment. By order of the District Court tle indictment was, on May 16, 1879, remitted and transferred to the next regular term of the Circuit Court of the United States for the Eastern District of Missouri, at which term the cause was heard upon the demurrer. Upon such hearing the following questions arose, upon which the judges of the Circuit Court were divided and opposed in opinion, namely:
1st, Whether it was necessary, in the counts of said indictment charging a fraudulent purchase by the defendant of certain shares of the capital stock of said association, to state for whose use the purchase was made, and whether, where it is charged in the indictment that the purchase of stock was made for the use of the bank, such averment vitiates the indictment.
2d, Whether it was necessary in the said counts to allege
that the purchase of stock was not made in order to prevent loss ou some previously contracted debt.
3d, Whether it was necessary in the said counts to set forth the means by which the defendant, as president of said bank, possessed himself of the moneys of the bank, which he employed in purchasing said stock.
4th, Whether it was necessary to charge in the said counts that the defendant, as president of the bank, was in possession of the funds of the bank, in addition to charging misapplication of said funds.
5th, Whether the counts of said indictment charging the fraudulent purchase by the defendant, as president of said banking association, of certain shares of stock “in trust, for the use of said association, and which said shares of stock were not purchased as aforesaid in order to prevent loss upon any debts theretofore contracted with said association in good faith,” alleged with sufficient certainty an offence under said sect. 5209 of the Revised Statutes of the United States.
6th, Whether count numbered 116 of the said indictment charges with sufficient certainty an offence under said sect. 5209 of the Revised Statutes of the United States.
7th, Whether it is necessary in an indictment under sect. 5209 of the Revised Statutes, charging wilful misapplication of the funds of a banking association, to allege that such misapplication was with intent to defraud.
8th, Whether the purchase of stock in violation of sect. 5201 of the Revised Statutes of the United States, if made with intent to defraud, and by one or more of the officers of the bank named in said sect. 5209 of the Revised Statutes, is a crime punishable under the latter section.
9th, Whether those counts which cover alleged false entries sufficiently state in offence under sect. 5209.
These questions, together with the pleadings upon which they arose, were, on motion of counsel for the United States, certified by the judges of the Circuit Court to this court for its opinion thereon.
Mr. Assistant Attorney-General Maury for the United States.
Mr. Chester H. Krum for the defendant.
MR. JUSTICE Woods delivered the opinion of the court.
In passing upon the questions certified to us by the Circuit Court, it will be convenient to follow the order in which they have been argued by counsel, rather than that in which they are presented by the certificate.
The section of the Revised Statutes upon which the indictment is based creates and describes certain offences, and expressly denominates them misdemeanors. In United States v. Mills, 7 Pet. 138, 142, it was said by this court that "the general rule is that in indictments for misdemeanors created by statute, it is sufficient to charge the offence in the words of the statute. There is not that technical nicety required as to form which seems to have been adopted and sanctioned by long practice in cases of felony, and with respect to some crimes, where particular words must be used, and no other words, however synonymous they may seem, can be substituted. But in all cases the offence inust be set forth with clearness, and all necessary certainty to apprise the accused of the crime with which he stands charged."
In United States v. Simmons, 96 U. S. 360, 362, this court, speaking by Mr. Justice Harlan, held, tliat " when the offence is plainly statutory, it is, as a general rule, sufficient in the indictment to charge the defendant with acts coming within the statutory description in the substantial words of the statute, without any further expansion of the matter.' . . . But to this rule there is the qualification, fundamental in the law of criminal procedure, that the accused must be apprised in the indictment with reasonable certainty of the nature of the accusation against him, to the end that he may prepare his defence and plead the judgment as a bar to any subsequent prosecution for the same offence.”
So in United States v. Carll, 105 id. 611, 612, it was said by Mr. Justice Gray, speaking for the court, that “in an indictment upon a statute it is not sufficient to set forth the offence in the words of the statute, unless those words of themselves fully, directly, and expressly, without any uncertainty or ambiguity, set forth all the elements necessary to constitute the offence intended to be punished; and the fact that the statute in question, read in the light of the common law and of other
statutes on the like matter, enables the court to infer the intent of the legislature, does not dispense with the necessity of alleg. ing in the indictment all the facts necessary to bring the case within that intent."
Iu United States v. Pond, 2 Curt. C. C. 265, the rule was thus stated by Mr. Justice Curtis : “ It must be remeinbered that this is an indictment for a misdemeanor created by the statute, and that in general it is sufficient to describe such an offence in the words of the statute, unless they embrace cases which it was not the intention of the legislature to include within the law. If they do, the indictment should show that this is not one of the cases thus excluded."
Applying the rules thus laid down to the counts of the indictment, we are to consider whether they sufficiently state an offence under sect. 5209 of the Revised Statutes.
To describe the offence charged in the first thirty-six counts of the indictment, sect. 5209 requires the following averments:
1. That the accused was the president or other officer of a national banking association, which was carrying on a banking business.
2. That being such president or other officer, he made in a book, report, or statement of the association, describing it, a false entry, describing it.
3. That such false entry was made with intent to injure or defraud the association, or to deceive any agent, describing him, appointed to examine the affairs of the association.
4. Averments of time and place.
An examination of the counts under consideration shows that they contain all these averments pleaded with clearness and reasonable certainty. They must, therefore, be held sufficient, unless some of the objections made to them by counsel for defendant are well taken.
It is urged that these counts are defective, because they do not contain an averment that the false entry was made “ in an account of and in the due course of business of the bank." Neither of these averments is required by the statute. It is alleged that the false entry was made in a book belonging to and in use by the association in transacting its banking business, and known and designated as “ profit and loss, num