NETERER, District Judge
(after stating the facts as above). It is settled by the Supreme Court that the order of removal is a judicial act, and that the prima facie case made by the indictment and proof of identity may be overcome by testimony, that the burden to overcome such prima facie case is on the defendant, and that a defendant is entitled to the judgment of the court from which removal is sought as to the existence of probable cause upon the testimony presented. Tinsley v. Treat, 205 U. S. 20, 27 Sup. Ct. 430, 51 L. Ed. 689; U. S. v. Morse (D. C.) 287 Fed. 906. In Tinsley v. Treat, supra, the court quoted Justice Brewer in Beavers v. Henkel, 194 U. S. 73, 24 Sup. Ct. 605, 48 L. Ed. 822;
“It may be conceded that no such removal should be summarily and arbitrarily made. There are risks and burdens attending it which ought not to be needlessly cast upon any individual. * * * We must never forget that in all controversies, civil or criminal, between the government and an individual, the latter is entitled to reasonable protection. * * In other words, the removal is made a judicial rather than a mere ministerial act.”
. Probable cause means more than opportunity to commit crime, or presence in a particular place. It must be more than surmise or suspicion. There must be some tangible fact or incident which will support a judicial act, something which invokes discrimination of judicial [494]*494discretion. The facts and circumstances before the court must be such as to warrant a man of prudence and caution in believing that the defendant is guilty. Stacy v. Emery, 97 U. S. 642, 24 L. Ed. 1035. And when there is, as here, an utter absence of fact, or circumstances of degree which invokes a discriminating discretion — and-it affirmatively appears from the record in this case that no act of the defendant, or any relation to the offense charged attached to the defendant, even though this proof is negative, coming from an intimate source, as in this case, from a witness produced by the government, and upon its face having the ring of truthfulness — a court may well hestitate before concluding that the prima facie case has not been overcome.
Upon the objection to the sufficiency of the indictment, the court likewise exercises more than a judicial discretion^ As stated in Tinsley v. Treat, supra:
“He [the judge] must look into the indictment to ascertain whether an offense against the United States is charged.”
Numerous cases have been cited by the government, which it is contended hold that the sufficiency of the indictment must be left to the court to which it was returned. These cases, however' (Munsey v. Clough, 196 U. S. 369, 25 Sup. Ct. 282, 49 L. Ed. 515; Hogan v. O’Neill, 255 U. S. 52, 41 Sup. Ct. 222, 65 L. Ed. 497; Pearce v. Texas, 155 U. S. 311, 15 Sup. Ct. 116, 39 L. Ed. 164) are cases where one state sought to extradite a defendant from another state, and it was contended in the United States court that the indictment was insufficient under the law of the indicting state, and the court held that, a state statute or procedure being involved, it could well be left with the state court to construe its statute and procedure. In the instant case a federal statute and federal procedure are involved.
In Haas v. Henkel, 216 U. S. 480, 30 Sup. Ct. 249, 54 L. Ed. 569, 17 Ann. Cas. 1112, no contrary proof was presented. The defendant relied solely upon the fact that another indictment had been returned in the district of New York, from which it was sought to remove the defendant, and the court held that the two indictments could pend at the same time, and that the second indictment would not be considered as proof negativing the prima facie case. In this case Justice Brewer, Justice McKenna concurring, said that, when there is a doubt whether the indictment will stand the final test of sufficiency, such doubt should be settled by direct action in the court in which the indictment was returned. Judge Bellinger, this circuit, in U. S. v. Conners, 111 Fed. 734, held that there can be no removal, even where no objection is made, or where consent is given, when the indictment does not state a crime. The Circuit Court of Appeals, Eighth Circuit, in Stewart v. U. S., 119 Fed. 89, at page 93, 55 C. C. A. 641, at page 645, said:
“A federal judge, to whom an application for a warrant of removal is made under section 1014, * * * it has been said, ‘misconceives his duty and fails to protect the liberty of the citizen,’ if he issues the warrant solely upon the strength of an indictment found in the foreign district, which does not substantially state an offense under federal laws,”
—and discharged the defendant because the indictment did not contain the requisites of a fraudulent scheme to defraud in a mail fraud
[495]*495case, in that the fraudulent scheme was not described with sufficient certainty to inform the defendant with reasonable certainty of the nature of the evidence to establish the scheme which would be adduced at the trial. To the same effect is Pereles v. Weil (D. C.) 157 Fed. 419.
The Supreme Court, in Greene v. Henkel, 183 U. S. 249, 260, 22 Sup. Ct. 218, 223 (46 L. Ed. 177), through Justice Peckham, said:
“ * * * The mere fact that in the indictment there may be lacking some technical averment of time, place, or circumstance, in order to render the indictment even free from technical defects, will not prevent the removal under that section [10141, if evidence be given upon the hearing which supplies such defects and shows probable cause to believe the defendants guilty of the commission of the offense defectively stated. * * * ”
In the instant case no testimony was given to cover any of the lacking averments, although it was shown that the government has all information as to the currency charged to have been received.
Section 17, chapter 9, Gould’s Pleadings:
“The difference between matter of form, and matter of substance, in general, under the statute of Elizabeth as laid down by Lord Hobart, is that that ‘without which the right doth sufficiently appear to the court’ is form, but that any defect, ‘by reason whereof the right appears not,’ is a defect in substance.”
In the next section giving his own definition, the author says:
“If the matter pleaded be in itself insufficient, without reference to the manner of pleading it, the defect is substantial; but, if the only fault is in the form of alleging it, the defect is but formal.”
Bouvier defines “substance” as that which is‘ essential; says that it is used in opposition to form. An indictment is insufficient in substance when it lacks something essential to malee a legal charge of crime. State v. Burgdoerfer, 107 Mo. 1, 17 S. W. 646, 14 L. R. A. 846. The offense must be described with such particularity as will advise the defendant with reasonable certainty of the accusation, so as to enable him to prepare his defense, and bar subsequent prosecution for the same offense.
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NETERER, District Judge
(after stating the facts as above). It is settled by the Supreme Court that the order of removal is a judicial act, and that the prima facie case made by the indictment and proof of identity may be overcome by testimony, that the burden to overcome such prima facie case is on the defendant, and that a defendant is entitled to the judgment of the court from which removal is sought as to the existence of probable cause upon the testimony presented. Tinsley v. Treat, 205 U. S. 20, 27 Sup. Ct. 430, 51 L. Ed. 689; U. S. v. Morse (D. C.) 287 Fed. 906. In Tinsley v. Treat, supra, the court quoted Justice Brewer in Beavers v. Henkel, 194 U. S. 73, 24 Sup. Ct. 605, 48 L. Ed. 822;
“It may be conceded that no such removal should be summarily and arbitrarily made. There are risks and burdens attending it which ought not to be needlessly cast upon any individual. * * * We must never forget that in all controversies, civil or criminal, between the government and an individual, the latter is entitled to reasonable protection. * * In other words, the removal is made a judicial rather than a mere ministerial act.”
. Probable cause means more than opportunity to commit crime, or presence in a particular place. It must be more than surmise or suspicion. There must be some tangible fact or incident which will support a judicial act, something which invokes discrimination of judicial [494]*494discretion. The facts and circumstances before the court must be such as to warrant a man of prudence and caution in believing that the defendant is guilty. Stacy v. Emery, 97 U. S. 642, 24 L. Ed. 1035. And when there is, as here, an utter absence of fact, or circumstances of degree which invokes a discriminating discretion — and-it affirmatively appears from the record in this case that no act of the defendant, or any relation to the offense charged attached to the defendant, even though this proof is negative, coming from an intimate source, as in this case, from a witness produced by the government, and upon its face having the ring of truthfulness — a court may well hestitate before concluding that the prima facie case has not been overcome.
Upon the objection to the sufficiency of the indictment, the court likewise exercises more than a judicial discretion^ As stated in Tinsley v. Treat, supra:
“He [the judge] must look into the indictment to ascertain whether an offense against the United States is charged.”
Numerous cases have been cited by the government, which it is contended hold that the sufficiency of the indictment must be left to the court to which it was returned. These cases, however' (Munsey v. Clough, 196 U. S. 369, 25 Sup. Ct. 282, 49 L. Ed. 515; Hogan v. O’Neill, 255 U. S. 52, 41 Sup. Ct. 222, 65 L. Ed. 497; Pearce v. Texas, 155 U. S. 311, 15 Sup. Ct. 116, 39 L. Ed. 164) are cases where one state sought to extradite a defendant from another state, and it was contended in the United States court that the indictment was insufficient under the law of the indicting state, and the court held that, a state statute or procedure being involved, it could well be left with the state court to construe its statute and procedure. In the instant case a federal statute and federal procedure are involved.
In Haas v. Henkel, 216 U. S. 480, 30 Sup. Ct. 249, 54 L. Ed. 569, 17 Ann. Cas. 1112, no contrary proof was presented. The defendant relied solely upon the fact that another indictment had been returned in the district of New York, from which it was sought to remove the defendant, and the court held that the two indictments could pend at the same time, and that the second indictment would not be considered as proof negativing the prima facie case. In this case Justice Brewer, Justice McKenna concurring, said that, when there is a doubt whether the indictment will stand the final test of sufficiency, such doubt should be settled by direct action in the court in which the indictment was returned. Judge Bellinger, this circuit, in U. S. v. Conners, 111 Fed. 734, held that there can be no removal, even where no objection is made, or where consent is given, when the indictment does not state a crime. The Circuit Court of Appeals, Eighth Circuit, in Stewart v. U. S., 119 Fed. 89, at page 93, 55 C. C. A. 641, at page 645, said:
“A federal judge, to whom an application for a warrant of removal is made under section 1014, * * * it has been said, ‘misconceives his duty and fails to protect the liberty of the citizen,’ if he issues the warrant solely upon the strength of an indictment found in the foreign district, which does not substantially state an offense under federal laws,”
—and discharged the defendant because the indictment did not contain the requisites of a fraudulent scheme to defraud in a mail fraud
[495]*495case, in that the fraudulent scheme was not described with sufficient certainty to inform the defendant with reasonable certainty of the nature of the evidence to establish the scheme which would be adduced at the trial. To the same effect is Pereles v. Weil (D. C.) 157 Fed. 419.
The Supreme Court, in Greene v. Henkel, 183 U. S. 249, 260, 22 Sup. Ct. 218, 223 (46 L. Ed. 177), through Justice Peckham, said:
“ * * * The mere fact that in the indictment there may be lacking some technical averment of time, place, or circumstance, in order to render the indictment even free from technical defects, will not prevent the removal under that section [10141, if evidence be given upon the hearing which supplies such defects and shows probable cause to believe the defendants guilty of the commission of the offense defectively stated. * * * ”
In the instant case no testimony was given to cover any of the lacking averments, although it was shown that the government has all information as to the currency charged to have been received.
Section 17, chapter 9, Gould’s Pleadings:
“The difference between matter of form, and matter of substance, in general, under the statute of Elizabeth as laid down by Lord Hobart, is that that ‘without which the right doth sufficiently appear to the court’ is form, but that any defect, ‘by reason whereof the right appears not,’ is a defect in substance.”
In the next section giving his own definition, the author says:
“If the matter pleaded be in itself insufficient, without reference to the manner of pleading it, the defect is substantial; but, if the only fault is in the form of alleging it, the defect is but formal.”
Bouvier defines “substance” as that which is‘ essential; says that it is used in opposition to form. An indictment is insufficient in substance when it lacks something essential to malee a legal charge of crime. State v. Burgdoerfer, 107 Mo. 1, 17 S. W. 646, 14 L. R. A. 846. The offense must be described with such particularity as will advise the defendant with reasonable certainty of the accusation, so as to enable him to prepare his defense, and bar subsequent prosecution for the same offense. The purpose of the statute (section 10215, Comp. St.) is to protect the mails against pilfering or meddling with its contents. The defendant, however, is not charged with robbing the mails, but with receiving money previously stolen by another. The charge is a felony in the nature of a larceny charge, as it is a malicious or wrongful taking of the property of another. The offense is statutory. The object of the law is to convict the guilty and shield the innocent.
The charge of receiving stolen property must describe the property with the same particularity as required in an indictment for larceny. Duncan v. Commonwealth, 165 Ky. 247, 176 S. W. 984; Wells v. State, 90 Miss. 516, 43 South. 610. Charging the defendant with receiving $2,000 in United States currency, knowing the same to have been stolen from the United States mails, is insufficient, because it does not apprise the defendant of the nature of the offense, so as to give him opportunity to meet it, and it does not make a judgment certain and available, and a bar to a subsequent prosecution for the [496]*496same offense. Wharton’s Crim. Proc. § 267; State v. Longbottoms, 11 Humph. (30 Tenn.) 39; Vaughn v. People, 29 Mich. 23; People v. Hunt, 251 Ill. 446, 96 N. E. 220, 36 L. R. A. (N. S.) 933. “United States currency” is a general term, and may include gold, silver, treasury notes, or bank notes. Ex parte Prince, 9 South. 659 (Fla.). It includes notes issued by the banks organized under the laws of the United States, the notes commonly known as greenbacks, and the certificates of deposit commonly called gold and silver certificates issued by the United States. State v. Oakley, 51 Ark. 112, 10 S. W. 17. It meáns the currency authorized by the United States government. State v. Gasting, 23 La. Ann. 609. It includes no doubt Federal Reserve notes.
Is the charge gold, silver, gold or silver certificates, treasury notes, Federal Reserve notes, national bank notes, or part of gne kind and part of another. The law presumes the defendant innocent. To hold that this description advises him of the nature of the charge would presume his guilt and knowledge of the kind and character of currency charged. The indictment would not sustain a judgment of conviction. State v. Segermond, 40 Kan. 107, 19 Pac. 370, 10 Am. St. Rep. 169. Attention is called by the government to language employed in U. S. v. Falkenhainer (C. C.) 21 Fed. 624, but in that case the court said:
_ “It may be remarked, in passing, that the indictment contained full description of the letters, so that the identification was complete.”
judge Gilbert in Thompson v. U. S., 202 Fed. 403, 120 C. C. A. 577, 47 L. R. A. (N. S.) 206, said:
“The indictment charges that the defendant did willfully * * * receive * * * hank notes, which were therein described.” (Italics mine.)
In that case it was held that it is not necessary to allege ownership of the notes, as the purpose of the statute (Rev. St. §§ 5467-5470 [Comp. St. §§ 10364, 10365]) is to protect the mails against plundering, pilfering, or other interference or meddling with its contents. It is noted, however, that the bank notes were described. Bowers v. U. S., 148 Fed. 379, 78 C. C. A. 193, was a mail theft charge, arid the theft was described with particularity. Here the gist of the offense is the thing stolen, received by a stranger to the robbery, and the article stolen must be described with particularity. The other cases are to the same effect, as above indicated.
A failure to describe the currency with particularity was clearly an omission of matter of substance, nor is probable cause shown.
Let the writ issue.