that the purchase of stock was not made in order to prevent loss on 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 an 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 must 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, that "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 nécessity of alleging in the indictment all the facts necessary to bring the case within that intent."

In United States v. Pond, 2 Curt. C. C. 265, the rule was thus stated by Mr. Justice Curtis: "It must be remembered 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

ber six." To hold this insufficient would carry refinement in criminal pleading to an impracticable extent. The counts point out to the defendant and the court, with certainty and precision, the book used by the association in which the false entry was made, and this is all that is necessary under the

statute.

It is next objected that the false entries as set out in the counts do not of themselves have any significance, and are unintelligible without explanation. This is mere assumption. Conceding that the entries may be unintelligible to persons not skilled as accountants, it does not follow that they are so to the agent appointed by the Comptroller, who, it is alleged, was the person whom the entries were intended to deceive. But, if the entries needed explanation, it was perfectly competent for the pleader to explain them by innuendo. Rex v. Griepe, 1 Ld. Raym. 256; Rex v. Aylett, 1 T. R. 63; Rex v. Taylor, 1 Camp. 404; Reg. v. Virrier, 12 Ad. & E. 317; Mix v. Woodward, 12 Conn. 262; Van Vechten v. Hopkins, 5 Johns. (N. Y.) 211. This he has done by averring what the entries purported to show, and did, in substance, indicate and declare. Having explained the entries, he avers them to be false. To hold this insufficient would be to decide that the making of false entries, in the books of a banking association, in the usual method of book-keeping, and which were intelligible to all accountants, could not be punished under the statute because not intelligible to persons generally, or to persons not skilled in book-keeping.

It is next objected that the counts under consideration are argumentative and repugnant, because they do not allege that interest was due to the association from the individuals named. in the alleged false entries.

This objection is not well founded. Whether interest was due or not is quite immaterial. The charge is that a false entry was made on the books of the association which purported that a certain sum was, on a day named, received from a person named, on account of interest then and there due from him to the association; that the said sum was not then and there received on account of interest due, and was not received on any account from any sources whatever. The falsity of the entry

does not consist in the fact that there was no interest due from the person named, but in the fact that money, which the entries declared had been received from him on account of interest due, had not been received from him on that or any other account. It was, therefore, entirely unnecessary to aver that no such interest was due, and the want of such averment does not render the counts argumentative or repugnant.

It is further objected to these counts that a false entry to the credit of profit and loss alone could not deceive a bank examiner, and, therefore, that the counts are repugnant. This is also mere assumption. But if the false entry is calculated to deceive, the making of it in the books of the association, with intent to deceive, is all that is necessary to bring the act within the meaning of the statute. It is perfectly apparent that any false entry in any account-book of a bank used in transacting its banking business is calculated to deceive. The fact that its falsity may be exposed by an examination of other books of account, does not render it any the less a false entry made with intent to deceive. The circumstance that the attempt to deceive by making a false entry was not an adroit and skilful one, does not relieve the act of its criminal character.

It is further contended that the counts under consideration are insufficient, because it is not alleged that at the time the false entries were made an agent had been appointed to examine the affairs of the association. This objection is based on the theory that the statute was designed to punish only those officers of a banking association who made false entries in its books with intent to deceive examiners appointed before the false entries were made. We do not think the statute will bear this construction.

The appointment of agents to examine the affairs of national banking associations is provided for by sect. 5240 of the Revised Statutes, which declares: "The Comptroller of the Currency, with the approval of the Secretary of the Treasury, shall as often as shall be deemed necessary or proper, appoint a suitable person or persons to make an examination of the affairs of every banking association, who shall have power to make a thorough examination into all the affairs of the association."