Wade, O. J.
This is an indictment charging tbe defendants with a conspiracy to defraud tbe United States, and they ask a reversal of tbe judgment herein for tbe following reasons:
[173]*1731. That no offense is alleged in the indictment, and that the court in which the same was found is unknown to the law.
2. That improper testimony was allowed to go to the jury.
3. That the testimony is insufficient to sustain the verdict.
4. That the court erred in the charge to the jury; and
5. That one of the jurymen was incompetent by reason of bias and prejudice.
1. The court described in the caption of the indictment is “ The United States district court of the Territory of Montana for the second judicial district.”
The court thus described is unknown to the Territory. We have no- “ United States district courts ” here. Our courts are statutory courts, created by acts of congress, and, although exercising the jurisdiction of circuit and district courts of the United States, they cannot for this reason be denominated “district courts of the United States.”
But the record accompanying the indictment shows that the indictment was found by the grand jury of the district court of the second judicial district of the Territory of Montana, which court had undoubted jurisdiction to find such indictment, and the wrong description of the court in the caption of the indictment does not vitiate it, especially so when the record shows that the com*t in which the indictment was found had jurisdiction of the offense.
2. It is contended that no offense is charged in the indictment, and this conclusion is arrived at by maintaining that no Indian agent, clerk or employee in the Indian service can under the statute be Convicted of the crime of embezzlement, for the reason that congress has failed to make embezzlement a crime as to such persons, and, this being the ease, that there can be no crime of conspiring to procure embezzlement to be committed. It is indeed true that no Indian agent, as such, can commit the crime of embezzlement. By virtue of his office, he has every opportunity to commit the crime, being charged with the duty of receiving and disbursing large quantities of goods for the government, but, for some inexplicable reason, congress has failed to make such person capable of committing the crime of embezzlement. But whether or not this indictment charges an offense [174]*174does not depend upon this consideration. The defendants are not charged with conspiring to procure an embezzlement to be committed, but-are charged with a conspiracy to procure the United States to be defrauded. The charging part of the indictment, leaving out descriptions, etc., is as follows: “ That Ensign, Upham and G-iddings wickedly devising and intending to cheat and defraud the United States, fraudulently, maliciously and unlawfully did conspire, combine, confederate and agree together, to cause and procure certain goods, wares and merchandise to be embezzled, and disposed of for money, with the intent thereby to defraud the United States,” and that, to carry out such conspiracy, they did certain acts which are set forth in the indictment. The word “embezzlement” may be left out of this charge, and'yet it would be perfect and complete, and would then stand in this way: “ That the defendants conspired and agreed together to procure certain goods to be disposed of for money, with the intent to defraud the United States.” Do' these latter words, which are the substance of the charge in the indictment, come within the statute upon which the indictment was founded. The language of the statute is as follows: “ If two or more persons conspire, either to commit any offense against the laws of the United States, or to dffrcmd the United States in any manner whatever, and any one or more of said parties to said conspiracy shall do any act,” etc.
Under this statute, there may be two classes of conspiracies. First, a conspiracy to commit an offense against the laws, and, second, a conspiracy to defraud the United States in any manner, whether by a violation of the laws, or by any other fraudulent act.
Transposing the statute, it reads, “If two or more persons conspire to defraud the United States, in any manner whatever,” and any one or more of such persons do any act to cany such conspiracy into execution, such persons shall be deemed guilty of a misdemeanor, etc.
And although a conspiracy to procure an embezzlement to be committed would be impossible for an Indian agent or employee, because there is no such crime for them, yet a conspiracy to procure the United States to be defrauded may. be committed even by an Indian agent, and, turning to the charge in the indictment, [175]*175we find that this Indian agent, clerk and trader conspired and agreed together to procure the goods of the United States, to be disposed of for money, fraudulently, and intending thereby to cheat and defraud the United States. 'Such an act, if carried into execution, is a fraud upon the United States and within the statute.
It is contended that these defendants, or, at least, that the defendant Ensign is the servant, agent or trustee of the United States, and that these goods were rightfully in his possession, having been placed there by the government for certain uses and purposes, and that if Ensign disposed of these goods wrongfully, or converted them to his own use, he is guilty simply for a breach of trust, and only liable upon his bond for such acts. 'We may admit that Ensign was the agent and trustee of the United States, and that the goods come rightfully to his possession, and that he could not, therefore, be guilty of stealing such goods; yet all this does not in the least take away his power to enter into a conspiracy to defraud the United States by combining and confederating with others to fraudulently dispose of such goods. A breach of trust is a fraud, and a breach of trust accompanied by a conspiracy to fraudulently dispose of the goods intrusted to his care, is a fraud upon the United States, and directly within the statute. And so, admitting that the goods come rightfully to the possession of Ensign, he still had the power to enter into the conspiracy as charged.
3. The next question relates to the admissibility of testimony. The question objected to is as follows: “ State what and how much was distributed at the first public distribution ? ”
The goods had been deposited with Ensign, and whether they had been rightfully or wrongfully disposed of was the' question. The object of the question propounded, and the other questions of like character, was to ascertain what part of such goods had been distributed to the Indians. If the Indians had not received the goods, and they had been disposed of, this was a circumstance properly given to the jury for consideration,— at least, it could not have prejudiced the defendants, and we can see no objection to permitting the question to be answered.
4. Insufficiency of the evidence to sustain a conviction. Neces[176]*176sarily, all tbe evidence is not contained in tbe record. Tbe record does not preserve tbe appearance of tbe witnesses, tbeir manner of giving tbeir testimony, tbeir interest, tbeir hesitation, tbeir eagerness or tbeir feeling.
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Wade, O. J.
This is an indictment charging tbe defendants with a conspiracy to defraud tbe United States, and they ask a reversal of tbe judgment herein for tbe following reasons:
[173]*1731. That no offense is alleged in the indictment, and that the court in which the same was found is unknown to the law.
2. That improper testimony was allowed to go to the jury.
3. That the testimony is insufficient to sustain the verdict.
4. That the court erred in the charge to the jury; and
5. That one of the jurymen was incompetent by reason of bias and prejudice.
1. The court described in the caption of the indictment is “ The United States district court of the Territory of Montana for the second judicial district.”
The court thus described is unknown to the Territory. We have no- “ United States district courts ” here. Our courts are statutory courts, created by acts of congress, and, although exercising the jurisdiction of circuit and district courts of the United States, they cannot for this reason be denominated “district courts of the United States.”
But the record accompanying the indictment shows that the indictment was found by the grand jury of the district court of the second judicial district of the Territory of Montana, which court had undoubted jurisdiction to find such indictment, and the wrong description of the court in the caption of the indictment does not vitiate it, especially so when the record shows that the com*t in which the indictment was found had jurisdiction of the offense.
2. It is contended that no offense is charged in the indictment, and this conclusion is arrived at by maintaining that no Indian agent, clerk or employee in the Indian service can under the statute be Convicted of the crime of embezzlement, for the reason that congress has failed to make embezzlement a crime as to such persons, and, this being the ease, that there can be no crime of conspiring to procure embezzlement to be committed. It is indeed true that no Indian agent, as such, can commit the crime of embezzlement. By virtue of his office, he has every opportunity to commit the crime, being charged with the duty of receiving and disbursing large quantities of goods for the government, but, for some inexplicable reason, congress has failed to make such person capable of committing the crime of embezzlement. But whether or not this indictment charges an offense [174]*174does not depend upon this consideration. The defendants are not charged with conspiring to procure an embezzlement to be committed, but-are charged with a conspiracy to procure the United States to be defrauded. The charging part of the indictment, leaving out descriptions, etc., is as follows: “ That Ensign, Upham and G-iddings wickedly devising and intending to cheat and defraud the United States, fraudulently, maliciously and unlawfully did conspire, combine, confederate and agree together, to cause and procure certain goods, wares and merchandise to be embezzled, and disposed of for money, with the intent thereby to defraud the United States,” and that, to carry out such conspiracy, they did certain acts which are set forth in the indictment. The word “embezzlement” may be left out of this charge, and'yet it would be perfect and complete, and would then stand in this way: “ That the defendants conspired and agreed together to procure certain goods to be disposed of for money, with the intent to defraud the United States.” Do' these latter words, which are the substance of the charge in the indictment, come within the statute upon which the indictment was founded. The language of the statute is as follows: “ If two or more persons conspire, either to commit any offense against the laws of the United States, or to dffrcmd the United States in any manner whatever, and any one or more of said parties to said conspiracy shall do any act,” etc.
Under this statute, there may be two classes of conspiracies. First, a conspiracy to commit an offense against the laws, and, second, a conspiracy to defraud the United States in any manner, whether by a violation of the laws, or by any other fraudulent act.
Transposing the statute, it reads, “If two or more persons conspire to defraud the United States, in any manner whatever,” and any one or more of such persons do any act to cany such conspiracy into execution, such persons shall be deemed guilty of a misdemeanor, etc.
And although a conspiracy to procure an embezzlement to be committed would be impossible for an Indian agent or employee, because there is no such crime for them, yet a conspiracy to procure the United States to be defrauded may. be committed even by an Indian agent, and, turning to the charge in the indictment, [175]*175we find that this Indian agent, clerk and trader conspired and agreed together to procure the goods of the United States, to be disposed of for money, fraudulently, and intending thereby to cheat and defraud the United States. 'Such an act, if carried into execution, is a fraud upon the United States and within the statute.
It is contended that these defendants, or, at least, that the defendant Ensign is the servant, agent or trustee of the United States, and that these goods were rightfully in his possession, having been placed there by the government for certain uses and purposes, and that if Ensign disposed of these goods wrongfully, or converted them to his own use, he is guilty simply for a breach of trust, and only liable upon his bond for such acts. 'We may admit that Ensign was the agent and trustee of the United States, and that the goods come rightfully to his possession, and that he could not, therefore, be guilty of stealing such goods; yet all this does not in the least take away his power to enter into a conspiracy to defraud the United States by combining and confederating with others to fraudulently dispose of such goods. A breach of trust is a fraud, and a breach of trust accompanied by a conspiracy to fraudulently dispose of the goods intrusted to his care, is a fraud upon the United States, and directly within the statute. And so, admitting that the goods come rightfully to the possession of Ensign, he still had the power to enter into the conspiracy as charged.
3. The next question relates to the admissibility of testimony. The question objected to is as follows: “ State what and how much was distributed at the first public distribution ? ”
The goods had been deposited with Ensign, and whether they had been rightfully or wrongfully disposed of was the' question. The object of the question propounded, and the other questions of like character, was to ascertain what part of such goods had been distributed to the Indians. If the Indians had not received the goods, and they had been disposed of, this was a circumstance properly given to the jury for consideration,— at least, it could not have prejudiced the defendants, and we can see no objection to permitting the question to be answered.
4. Insufficiency of the evidence to sustain a conviction. Neces[176]*176sarily, all tbe evidence is not contained in tbe record. Tbe record does not preserve tbe appearance of tbe witnesses, tbeir manner of giving tbeir testimony, tbeir interest, tbeir hesitation, tbeir eagerness or tbeir feeling. And it is tbe duty of an appellate court, if, looking upon tbe testimony preserved, it sees substantial proof to sustain tbe verdict, to do so, and'that, in tbis record, there is testimony tending to prove tbe guilt of tbe defendants, I cannot doubt.
5. It is objected that tbe testimony of "W. H. Clagett was incompetent and improper, and being thus, that its pernicious effect upon tbe jury could not be counteracted or destroyed by tbe court wholly withdrawing such testimony from tbe jury. An examination of tbe record shows that tbe witness gave no testimony whatever that could in any manner affect the case or tbe jury. Tbe witness was asked if tbe defendant Upbam bad made to him any statement or confession. Objection was made, and during tbe pendency of tbe discussion the witness answered that be bad; but what tbe statement was, or what tbe confession was, if any, never went to tbe jury, and they could not, therefore, by any possibility, have drawn any conclusion whatever from such testimony. And even tbe answer given was entirely withdrawn from tbeir consideration, and if it bad not been, we cannot see bow or in what manner it could have prejudiced tbe defendants.
6. Objection was taken to many of tbe instructions given and refused, but we think tbe charge of tbe court substantially covers all tbe instructions appbcable to tbe facts asked for by tbe defendants, and we see no error in tbe charge as given.
Y. Tbe remaining question relates to tbe motion for a new trial, based upon affidavits as to tbe competency of tbe juryman T. 0. "Warren. Many affidavits were filed, showing that said juryman, after being summoned to serve for tbe term, in speaking of tbe cases known as tbe “ Indian agency ” cases, used such expressions as these: “ If be found them tbe least guilty, be would cinch them plenty; ” or, “ I am on tbe jury in those cases, and will send up tbe defendants; ” or, “ I want to be on tbe jury; I would like to send up tbe defendants.” By counter affidavits these expressions are shown to have been made in jest and sport, or not at all, and that tbe juryman did not know tbe defendants in tbis par[177]*177ticular case, and that he had no bias or prejudice whatever against these particular defendants, and but for the affidavit of the witness Simpson, the juryman might have been held competent. Simpson says the juryman said to him that he had formed an opinion in the case, but that evidence might remove such opinion-In his affidavit explaining his first affidavit he says the juryman referred to no particular case, but to the Indian agency cases generally. The present ease being an Indian agency case, or known as such, we do not perceive that the explanation at all impairs the force of the first affidavit, and that affidavit, unexplained, would tend strongly to show that the juryman was biased or prejudiced in the ease in which he afterward served as a juryman. This the juryman denied, but there is no disputing the fact that he had talked about the Indian agency cases, and in such talk had evinced bias or prejudice generally in those cases, and there is nothing to exempt this ease from its operation.
¥e think, therefore, that the juryman was incompetent to serve in the case, and for this reason alone reverse the judgment and remand the case for a new trial.