The Chief Justice
delivered the opinion of the court.
These indictments are all founded upon the first section of the act to punish frauds committed on the incorporated banks of this state. Rev. Stat. 125. By that section, it is enacted, “that if any director of any incorporated bank in this state, or any cashier, book-keeper, or other officer or agent of any such bank, shall knowingly overdraw his account with the bank of which he shall be director, cashier, book-keeper, officer, or agent, for his own private use or benefit, or shall purloin, embezzle, or convert to his own use any money, bank bill or note the property of the said corporation, with intent to defraud the said corporation, or wrongfully to make use of the same, in every such case the person so offending shall be judged guilty of a high misdemeanor.”
All the counts of these indictments charge, in substance, that the defendant, being cashier of the Peoples Bank of Paterson, did unlawfully convert to his own use certain money, bank [23]*23bills and notes, the property of the said corporation, with intent to defraud the same. The defendant demurs, both for lack of form and of substance.
In relation to offences created by statute, the statute contains a definition of the offence. The offence consists in the commission of certain acts under specified circumstances, and in some cases with a particular intent, and an indictment founded on the statute must with certainty and precision charge the defendant with having committed or omitted the acts, under the circumstances and with the intent mentioned in the statute. Archb. Crim. Plead. (1st Am. ed.) 23.
The statute makes the offence which forms the subject matter of these indictments to consist in the purloining, embezzling, or converting to his own use, by the cashier of any incorporated bank in this state, money, bank bills or notes the property of the said corporation, with intent to defraud the said corporation or wrongfully to make use of the same.
So far as the ingredients which compose the offence are concerned, they are all set out in the indictment literally or substantially in the words of the statute. It is averred that the defendant was the cashier of an incorporated bank in this state, incorporated by the laws of this state, and that, being-such cashier at the time of the commission of the offence charged in the indictment, he did convert to his own use money and hank notes the property of the said bank.
It is insisted, however, that although the indictment has used the language of the act, it has not described the offence which the legislature designed to punish; that the indictment should have alleged not merely that the defendant was cashier at the time of the commission of the offence, hut that he committed the act charged against him in his fiduciary capacity ; that the funds were intrusted to him in such capacity, and that in the commission of the offence he abused the confidence reposed in him as cashier. It is further insisted that, as the indictment does not charge an embezzlement by the use of a phrase of technical import, it should have charged that the defendant converted the funds to his own use, with intent to defraud the corporation. The objection resolves itself into this, [24]*24viz. that the only offence which the legislature designed to prohibit was embezzlement by the cashier of the property of the corporation with which he was intrusted.
The answer, and it would seem the decisive answer to this objection, is, that the statute does not make either of the facts, the omission of which forms the subject of the objection, an ingredient in the offence. The indictment charges the defendant with having committed the act charged under the circumstances and with the intent mentioned in the statute. If the terms used in the statute, ex vi terminorum,ivo^act the existence of any other ingredient or element in the constitution of the offence, the language of the indictment must necessarily have the same import. If no other element than that expressed in the statute is necessarily implied in its language, it cannot be necessary in the indictment to aver the existence of any other element.
Admitting, for the sake of the argument, that the terms of the statute are broader in their application than necessity or sound policy would dictate, it must be conceded that the introduction of the averments, alleged to be essential, into the indictment would materially narrow the prohibition of the statute, and introduce into the offence an ingredient not specified by the legislature. If the language of the statute was of doubtful import, the force of the objection might be admitted. The statute must be strictly construed. But when the terms of the act are clear and unequivocal, there is no authority by which courts may narrow its prohibition or limit its operation. It is not pretended that there is any ambiguity in the language of the statute. It is conceded, indeed, that, in order to sustain the objection, the court must alter the language of the statute, so that embezzling by the cashier, and converting to his own use, shall constitute but one offence. The plain terms of the act have a different import. And the legislature may -well have considered that the public welfare and sound policy demanded that the act should be as broad in its prohibitions and as penal in its sanctions as its language plainly imports.
It is further insisted that the offence itself is not charged with sufficient certainty and minuteness ¿ that although the [25]*25facts which constitute the crime be set forth in the words of the statute, yet the circumstances which give individuality to the crime are not stated with such certainty and precision as to apprize the defendant of the particular offence with which he stands charged.
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. 1 Arch. Crim. Pl. 213, 214; United States v. Mills, 7 Peters 142; United States v. Lacoste, 2 Mason 141; United States v. Lancaster, 2 McLean 250; The People v. Taylor, 3 Denio 93. But the rule, though general, admits of many exceptions. In all cases the offence must be set forth with clearness and all necessary certainty to apprize the party accused of the offence with which he stands charged. “ It doth not seem,” says Hawkins, “ to be always sufficient to pursue the very words of the statute, unless by so doing you fully, directly, and expressly allege the fact in the doing or not doing whereof the offence consists without the least uncertainty or ambiguity. 2 Hawk. P. C., Book 2, cap. 25, § 113.
In an indictment against a servant fo.r embezzlement, it is not sufficient to charge that money or bank bills were delivered to the defendant by his master, and that he withdrew himself from his master with intent to defraud, but the indictment must specify the article delivered, its nature, and the name of the master. 3 Chitty’s Crim. Law 980; Archb. Crim. Pl. 156. So where a statute makes the malicious killing of cattle felony, it is not enough to charge the defendant with killing cattle, but the species and the number must be stated. Archb. Crim. Pl. 24.
Some degree of individuality, it is admitted, must be given to the offence with which the defendant is charged.
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The Chief Justice
delivered the opinion of the court.
These indictments are all founded upon the first section of the act to punish frauds committed on the incorporated banks of this state. Rev. Stat. 125. By that section, it is enacted, “that if any director of any incorporated bank in this state, or any cashier, book-keeper, or other officer or agent of any such bank, shall knowingly overdraw his account with the bank of which he shall be director, cashier, book-keeper, officer, or agent, for his own private use or benefit, or shall purloin, embezzle, or convert to his own use any money, bank bill or note the property of the said corporation, with intent to defraud the said corporation, or wrongfully to make use of the same, in every such case the person so offending shall be judged guilty of a high misdemeanor.”
All the counts of these indictments charge, in substance, that the defendant, being cashier of the Peoples Bank of Paterson, did unlawfully convert to his own use certain money, bank [23]*23bills and notes, the property of the said corporation, with intent to defraud the same. The defendant demurs, both for lack of form and of substance.
In relation to offences created by statute, the statute contains a definition of the offence. The offence consists in the commission of certain acts under specified circumstances, and in some cases with a particular intent, and an indictment founded on the statute must with certainty and precision charge the defendant with having committed or omitted the acts, under the circumstances and with the intent mentioned in the statute. Archb. Crim. Plead. (1st Am. ed.) 23.
The statute makes the offence which forms the subject matter of these indictments to consist in the purloining, embezzling, or converting to his own use, by the cashier of any incorporated bank in this state, money, bank bills or notes the property of the said corporation, with intent to defraud the said corporation or wrongfully to make use of the same.
So far as the ingredients which compose the offence are concerned, they are all set out in the indictment literally or substantially in the words of the statute. It is averred that the defendant was the cashier of an incorporated bank in this state, incorporated by the laws of this state, and that, being-such cashier at the time of the commission of the offence charged in the indictment, he did convert to his own use money and hank notes the property of the said bank.
It is insisted, however, that although the indictment has used the language of the act, it has not described the offence which the legislature designed to punish; that the indictment should have alleged not merely that the defendant was cashier at the time of the commission of the offence, hut that he committed the act charged against him in his fiduciary capacity ; that the funds were intrusted to him in such capacity, and that in the commission of the offence he abused the confidence reposed in him as cashier. It is further insisted that, as the indictment does not charge an embezzlement by the use of a phrase of technical import, it should have charged that the defendant converted the funds to his own use, with intent to defraud the corporation. The objection resolves itself into this, [24]*24viz. that the only offence which the legislature designed to prohibit was embezzlement by the cashier of the property of the corporation with which he was intrusted.
The answer, and it would seem the decisive answer to this objection, is, that the statute does not make either of the facts, the omission of which forms the subject of the objection, an ingredient in the offence. The indictment charges the defendant with having committed the act charged under the circumstances and with the intent mentioned in the statute. If the terms used in the statute, ex vi terminorum,ivo^act the existence of any other ingredient or element in the constitution of the offence, the language of the indictment must necessarily have the same import. If no other element than that expressed in the statute is necessarily implied in its language, it cannot be necessary in the indictment to aver the existence of any other element.
Admitting, for the sake of the argument, that the terms of the statute are broader in their application than necessity or sound policy would dictate, it must be conceded that the introduction of the averments, alleged to be essential, into the indictment would materially narrow the prohibition of the statute, and introduce into the offence an ingredient not specified by the legislature. If the language of the statute was of doubtful import, the force of the objection might be admitted. The statute must be strictly construed. But when the terms of the act are clear and unequivocal, there is no authority by which courts may narrow its prohibition or limit its operation. It is not pretended that there is any ambiguity in the language of the statute. It is conceded, indeed, that, in order to sustain the objection, the court must alter the language of the statute, so that embezzling by the cashier, and converting to his own use, shall constitute but one offence. The plain terms of the act have a different import. And the legislature may -well have considered that the public welfare and sound policy demanded that the act should be as broad in its prohibitions and as penal in its sanctions as its language plainly imports.
It is further insisted that the offence itself is not charged with sufficient certainty and minuteness ¿ that although the [25]*25facts which constitute the crime be set forth in the words of the statute, yet the circumstances which give individuality to the crime are not stated with such certainty and precision as to apprize the defendant of the particular offence with which he stands charged.
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. 1 Arch. Crim. Pl. 213, 214; United States v. Mills, 7 Peters 142; United States v. Lacoste, 2 Mason 141; United States v. Lancaster, 2 McLean 250; The People v. Taylor, 3 Denio 93. But the rule, though general, admits of many exceptions. In all cases the offence must be set forth with clearness and all necessary certainty to apprize the party accused of the offence with which he stands charged. “ It doth not seem,” says Hawkins, “ to be always sufficient to pursue the very words of the statute, unless by so doing you fully, directly, and expressly allege the fact in the doing or not doing whereof the offence consists without the least uncertainty or ambiguity. 2 Hawk. P. C., Book 2, cap. 25, § 113.
In an indictment against a servant fo.r embezzlement, it is not sufficient to charge that money or bank bills were delivered to the defendant by his master, and that he withdrew himself from his master with intent to defraud, but the indictment must specify the article delivered, its nature, and the name of the master. 3 Chitty’s Crim. Law 980; Archb. Crim. Pl. 156. So where a statute makes the malicious killing of cattle felony, it is not enough to charge the defendant with killing cattle, but the species and the number must be stated. Archb. Crim. Pl. 24.
Some degree of individuality, it is admitted, must be given to the offence with which the defendant is charged. How-much, is a question of some difficulty and embarrassment, in regard to which it is difficult to reconcile all the cases in the books. The certainty should be such as to identify the offence, so that the defendant may know what crime he is called upon to answer, and that he may plead the conviction or acquittal in lieu of another indictment for the same offence. But the [26]*26particularity required is not such as to screen the offender from conviction or to embarrass the prosecution with useless technicalities. r
It is clear that it would not be sufficient, in an indictment upon the statute now under consideration, to charge, in the words of the statute, that the defendant did convert to his own use money and bank notes the property of the bank. There must be some description, either of number, denomination, or value, by which the particular offence charged may be, to some extent at least, identified. The allegation of time and place does not materially aid the description, for although essential, it is not necessary that they be truly alleged. In indictments for larceny or embezzlement, it is usual to allege the species, the number, and the value of the articles stolen or embezzled. Thus in an indictment for stealing or embezzling bank notes, the familiar form of the charge is, that the defendant took nine bank notes for the payment of five dollars each, and of the value of five dollars each; or if the particular notes cannot be described, then the form of the averment is, that he took nine bank notes for the payment of divers sums of money, amounting in the whole to the sum of $500 and of the value of $500.
In one count of these indictments it is charged that the defendant unlawfully converted to his own use $19,000 of money and $19,000 of bank notes. The count is clearly bad for uncertainty. It contains no description, either of the number or the denomination of the coin or of the notes. The charge is, not that the defendant converted 19,000 coins, or coins amounting to the value of $19,000, but that he converted $19,000 of money. The design of the pleader probably was to charge the conversion of money or coin, amounting in value to $19,000, but that is not the charge as made. Can a charge of converting $10,000 in coins be sustained by proving that the defendant converted coins of other denominations to the value of $10,000 ? If the charge was that the defendant had converted 10,000 half dollars, that charge would not be sustained by proving the conversion of 20,000 quarters or of 50,000 dimes. It would be, to say the least, doubtful whether [27]*27the charge contained in this could be sustained by any other proof than that of converting 20,000 coined dollars, and the doubt results from the fact, that the charge itself lacks the requisite legal precision. It is doubtful whether the pleader meant to charge the conversion of 20,000 coined dollars, or the conversion of coins of other denominations amounting to $20,000. The phrase may well bear either import.
No such uncertainty could arise from charging in an indictment in England the conversion or embezzlement of £20,000 of money, because there is no such coin as a pound. It has no physical existence, but is a mere expression of value in computation, and hence the charge of stealing or embezzling twenty pounds is bad. The charge must be, that the defendant stole so many shillings or guineas, or at least coins, of the value of £20. Rex v. Fry, 1 Rus. & Ryan 481.
But the term dollar, is both the name of a coin and an expression of value, and hence the charge of embezzling 020,000 of coin is uncertain and vicious. It may be that the phrase used has an import which is sufficiently intelligible in common parlance; but in criminal pleading, in a charge involving personal character and liberty, the dictates of justice, no less than the rules of good pleading, require that the charges should be made with such precision as to admit of no uncertainty. This objection extends to all the counts which charge the conversion of money and bank notes, except the second count of the third indictment. That count charges the conversion of bank notes amounting to the sum of 07000. But in this count, as in the others, there is no averment of the number of the notes, and, what is more material, there is no averment of their vulue. The same objection extends to two counts of the first indictment. They charge the conversion of 019,000 of bank notes, without alleging that they possessed any value whatever. It is certainly true that it is not necessary to state the value of coin, because every genuine current coin of the government has a fixed value by law, of which the courts will take notice. It is also true that the offence does not depend upon the value of the notes embezzled or converted in violation of the statute. It is equally an offence by the statute to convert ten dollars or [28]*28ten thousand dollars. Nor does it seem to be clearly settled that it is necessary in an indictment to charge the value of personal chattels which are the subject of a misdemeanor, except when they constitute, as in larceny, an ingredient in the crime. But the subject of the offence must possess some value. To embezzle or convert the notes of a broken bank which are perfectly valueless, cannot constitute the offence contemplated in this statute. The object of the statute is to guard against frauds and to protect the funds of the corporation against embezzlement or unlawful conversion by its officers. To embezzle or convert waste paper is not a crime within the purview of the statute.
The twenty-first section of the act of Congress of the third of March, 1825, (3 Story’s Laws U. S. 1985) provides that if any person employed in any of the departments of the post office establishment shall secrete, embezzle, or destroy any letter, packet, bag, or mail of letters with which he shall be intrusted, or which shall come to his possession, and are intended to be conveyed by post, containing any bank note or bank post bill, he shall, on conviction, be subject to fine and imprisonment. The twenty-fourth section of the act subjects to the same penalties those who shall procure and advise or assist in doing or perpetrating any of the crimes forbidden by the act.
In indictments for violations of this statute, it has been deemed not necessary to describe either the letter embezzled or destroyed, or the notes contained in it. United States v. Mills, 7 Peters 138; United States v. Lancaster, 2 McLean 431.
Taking the notes, the court say, does not constitute the principal offence. The main offence is the violation of the sanctify of the mail: a description of the notes is therefore unnecessary. But a counterfeit note, being of no value, or a note on a bank which never existed or which is wholly insolvent, would not constitute the offence under the statute. United States v. Nott, 1 McLean 505.
In the present case, the conversion of the notes constitutes the principal offence. That the notes should be of some value, is an essential ingredient in the constitution of the offence. It [29]*29is clear, therefore upon principle, that in charging the conversion of bank notes, which per se contain no intrinsic value, the indictment must contain an express averment of value.
Upon one or the other of the grounds stated, all the counts charging the defendant with the conversion of money or bank notes are defective in form.
The first count of the third indictment charges the defendant with converting to his own rise a promissory note made by individuals for $1000. The statute creating the offence makes it penal for the cashier of any incorporated bank to convert to his own use any money, hank bill or note, the property of the said corporation, with intent, &c. The offence charged in this count of the indictment is neither within the words nor the meaning of the statute. The phrase “ bank bill or note” means bank bill or bank note. This ellipsis of the adjective is not only familiar in oral discourse, but in formal writing, and is in strict accordance with the rules of grammatical construction. The prohibition of the statute extends only to bank bills or bank notes, and not to promissory notes or other commercial paper.
The legislature have frequently used the same phraseology in a way to leave no doubt as to their meaning. Thus the act for the punishment of crimes (Rev. Stat. 271, § 48,) makes criminal the forging or counterfeiting of any bank bill or note, check, draft, bill of exchange, or promissory note for the payment of money. And the same act, section 69, prohibits the destroying of any bank bill or note, check, draft, bill of exchange, or promissory note for the payment of money; and in sections 43 and 45 of the same act, the same phraseology is used, manifestly with the same import.
This construction is in accordance with the manifest intent and spirit of the prohibition. The design of the statute was to make the embezzlement of coins and of bank notes, (of money, strictly so called, and of the ordinary substitute for money) either of which may with facility be purloined or embezzled by the officers of the bank. Promissory notes for the payment of money, which may be readily identified and their fraudulent embezzlement or conversion detected and proved.. [30]*30are neither within the letter nor meaning of the prohibition. Checks, drafts, and other commercial paper are as liable to embezzlement as promissory notes, and would doubtless have been enumerated, had either of them been within the contemplation of the legislature.
The statute is highly penal. It makes criminal acts which are neither mala in se nor prohibited by the common law. It must be strictly construed, and its prohibitions be confined within the letter of the act. This count is bad in substance.
There must be judgment for the defendant upon the demurrers to all the indictments.
Justices Ogden and Potts concurred.