Statement of the Case. EVANS v. UNITED STATES. ERROR TO THE DISTRICT COURT OF THE UNITED STATES FOR THE EASTERN DISTRICT OF PENNSYLVANIA. No. 922. Argued April 17, 18, 1894. - Decided May 14, 1894. An indictment should charge the crime, alleged to have been committed, with precision and certainty, and every ingredient of which it is composed must be accurately and clearly alleged; but it is not necessary in framing it to set up an impracticable standard of particularity, whereby the government may be entrapped into making allegations which it would be impossible to prove. Applying this rule, the eighth count in the indictment, charging the prisoner with unlawfully procuring the surrender and delivery to himself of the funds of a national bank of which he was a director, and the fourteenth count, charging him with knowingly and fraudulently aiding in procuring the discount of unsecured paper by the bank, are examined in detail, and are held to be sufficient to sustain the conviction. A verdict of guilty, entered upon all the counts of an indictment, should stand if any one of them is good. PLAINTIFF in error, who was a director in the Spring Garden National Bank, was indicted for an alleged violation of Revised Statutes, § 5209, which reads as follows: "Every president, director, cashier, teller, clerk, or agent of any association, who embezzles, abstracts, or wilfully misapplies any of the moneys, funds, or credits of the association; with intent, in either case, to injure or defraud the association or any other company, body politic or corporate, or any individual person, and every person who with like intent aids or abets any officer, clerk, or agent in any violation of this section, shall be deemed guilty of a misdemeanor, and shall be imprisoned not less than five years nor more than ten." The indictment contained 146 counts, upon all of which, except 24, a nolle pros. was entered. A demurrer was filed to all these remaining counts, which was overruled. The defendant was then arraigned, pleaded not guilty, was put upon trial, and convicted upon all the 24 counts, and sentenced Statement of the Case. to five years' imprisonment. A motion for a new trial and in arrest of judgment being overruled, defendant sued out this writ, assigning as error the action of the court in overruling his demurrer, and in refusing to arrest the judgment on account of the insufficiency of the indictment. The case was originally argued in this court upon the sufficiency of all these counts, and a reargument subsequently ordered upon the eighth, ninth, tenth, and fourteenth. A copy of the eighth count, which was a representative one of its class, and in its framework and structure was similar to all the counts to which the attention of the court was called, is here given: "8. And the grand inquest aforesaid, inquiring as aforesaid, upon their respective oaths and affirmations aforesaid, do further present that heretofore, to wit, on the eighth day of May, A.D. 1891, the said Nelson F. Evans, yeoman, late of the district aforesaid, at the district aforesaid and within the jurisdiction of this court, did knowingly, wilfully, unlawfully, and fraudulently aid and abet one Harry H. Kennedy, (the said Harry H. Kennedy being then and there cashier of a certain national banking association then and there known and designated as the Spring Garden National Bank, in the State of Pennsylvania, which said association had been theretofore created and organized under and by virtue of acts of Congress in such case made and provided, and which said association was then and there acting and carrying on a banking business at Philadelphia, in the said district, under the acts of Congress in such case made and provided,) then and there to wilfully misapply a certain large amount of the moneys, funds, and credits then and there belonging to the said national banking association for the use, benefit, and advantage of the said Nelson F. Evans, then and there with intent in him, the said Nelson F. Evans, to injure and defraud the said national banking association that is to say, the said Harry H. Kennedy, late of the district aforesaid, heretofore, to wit, on the day and year aforesaid, in the district aforesaid, and within the jurisdiction of this court, being then and there cashier, as aforesaid, of the said national banking association Opinion of the Court. aforesaid, did knowingly, unlawfully, fraudulently, and wilfully and with intent to injure and defraud the said national banking association misapply certain of the moneys, funds, and credits of the said national banking association, to wit, the sum of seventy-five hundred dollars, in the manner and by the means following-that is to say, a certain promissory note, dated, to wit, Philadelphia, November 10, 1890, made and drawn by a certain person, to wit, A. B. Nettleton, for the sum of, to wit, seventy-five hundred dollars, due and payable March 13, 1891, at the said bank, had been theretofore, to wit, upon the day and year aforesaid, discounted by the said bank, and was then and there overdue and unpaid, and held by the said bank as and for funds and credits, as aforesaid; whereupon, the said Harry H. Kennedy did then and there, with intent to injure and defraud the said national banking association, knowingly, unlawfully, and fraudulently wilfully misapply the same, in that he then and there surrendered and delivered the same to the said Nelson F. Evans, without receiving therefor for the said bank the said sum of seventyfive hundred dollars, or any part thereof; and the said Nelson F. Evans did then and there knowingly and unlawfully aid and abet the said Harry H. Kennedy, then and there cashier as aforesaid, knowingly, unlawfully, and fraudulently, to wilfully misapply the said funds and credits of the said national banking association, as aforesaid, then and there, with intent in him, the said Nelson F. Evans, to injure and defraud the said national banking association, contrary to the form of the act of Congress in such case made and provided, and against the peace and dignity of the United States of America." Mr. Hampton L. Carson, (with whom were Mr. J. Levering Jones and Mr. Rufus E. Shapley on the brief,) for plaintiff in error. Mr. Assistant Attorney General Conrad for defendants in error. MR. JUSTICE BROWN, after stating the case, delivered the opinion of the court. Opinion of the Court. This case involves the sufficiency of an indictment for the wilful misapplication of the funds of a national bank, in violation of section 5209 of the Revised Statutes. A rule of criminal pleading, which at one time obtained in some of the circuits, and perhaps received a qualified sanction from this court in United States v. Mills, 7 Pet. 138, that an indictment for a statutory misdemeanor is sufficient, if the offence be charged in the words of the statute, must, under more recent decisions, be limited to cases where the words of the statute themselves, as was said by this court in United States v. Carll, 105 U. S. 611, 612, "fully, directly, and expressly, without any uncertainty or ambiguity, set forth all the elements necessary to constitute the offence intended to be punished." The crime must be charged with precision and certainty, and every ingredient of which it is composed must be accurately and clearly alleged. United States v. Cook, 17 Wall. 168, 174; United States v. Cruikshank, 92 U. S. 542, 558. "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 alleging in the indictment all the facts necessary to bring the case within that intent." United States v. Carll, 105 U. S. 611. Even in the cases of misdemeanors, the indictment must be free from all ambiguity, and leave no doubt in the minds of the accused and the court of the exact offence intended to be charged, not only that the former may know what he is called upon to meet, but that, upon a plea of former acquittal or conviction, the record may show with accuracy the exact offence to which the plea relates. United States v. Simmons, 96 U. S. 360; United States v. Hess, 124 U. S. 483; Pettibone v. United States, 148 U. S. 197; In re Greene, 52 Fed. Rep. 104. The section in question in this case was before this court in United States v. Britton, 107 U. S. 655, 669, in which the wilful misapplication made an offence by this statute was defined to be “a misapplication for the use, benefit, or gain of the party charged or of some company or person other than the association," and that to constitute such an offence there must Opinion of the Court. be a conversion to the use of the offender, or of some one else, of the moneys or funds of the association by the party charged. It was said that a count which merely charged a maladministration of the affairs of the bank rather than a criminal misapplication of its funds was insufficient. "It would not," said Mr. Justice Woods, "be sufficient simply to aver that the defendant 'wilfully misapplied' the funds of the association. .. There must be averments to show how the application was made, and that it was an unlawful one." The case again came before this court in 108 U. S. 199, and it was then held that the declaring of a dividend by the association when there were no net profits to pay it was not a criminal application of its funds, but an act of maladministration which, while it might subject the association to a forfeiture of its charter, and the directors to a personal liability for damages, did not render them liable to a criminal prosecution. Again, in United States v. Northway, 120 U. S. 327, it was held not to be necessary to charge that the moneys and funds alleged to have been misapplied had been previously entrusted to the defendant, since a wilful and criminal misapplication of such funds might be made by its officer or agent without having previously received them into his manual possession. See also Claassen v. United States, 142 U. S. 140. The counts of this indictment may be divided into three general classes: First, those charging the defendant with procuring the surrender and delivery to himself of the funds of the bank, and which for convenience may be termed the "surrender and delivery" counts; second, those based upon the illegal discount of unsecured paper, and which may be termed the "unlawful discount" counts; and, third, those in which the defendant is accused of fraudulently overdrawing his own account at the bank, and which may be termed the "overdraft" counts. 1. The eighth, one of the "surrender and delivery "counts, charges in substance that on May 8, 1891, Evans did knowingly, wilfully, unlawfully, and fraudulently aid and abet one Harry H. Kennedy, cashier of the bank, to wilfully misapply certain moneys, funds, and credits belonging to the bank, for |