CRAJNCH, Chief Judge,
delivered the opinion of the court as follows (THRUSTON, Circuit Judge, dissenting). The substance of the first indictment is: That Tobias Watkins, being fourth auditor of the treasury of the United States, and intending fraudulently to obtain, for his own use, money. of the United States, falsely and fraudulently wrote a letter to J. K. Paulding, a navy agent of the United States, advising him of his (T. W.'s) draft on him for 8500, to be charged to “arrearages,” and that he would receive a treasury draft for the same, to meet it. That T. W. drew such a draft, and sold it to C. S. Fowler for, and received of him, the same amount, and applied it to his own use. That the said T. W. did, ostensibly for the public service, but falsely, and without authority, procure to be issued from the navy department a certain requisition to the secretary of the treasury, for the purpose of placing in the hands of the said J. K. P., navy agent, the sum of $1,000; which requisition is set out in verbis, to be charged to “arrearages prior to 1827”; by means of which requisition the said sum of $1,000 was placed in the hands of the said navy agent. That the said T. W. afterwards wrote another letter to the said navy agent, informing him that the remittance under the appropriation for “arrearages" would be $1,000 instead of $500 as before advised, and afterwards drew another draft on him for $500, which sum he received for it of C. S. Fowler, and applied to his own use; of - which draft he also Informed the said navy agent by letter. “That the said letters and drafts so as aforesaid written and sent and drawn and sold as aforesaid, and' the said requisition caused and procured to be issued as aforesaid, were, and each of them was, so written, sent, drawn, and sold, and caused and procured to be issued as aforesaid, without any authority therefor, and not for or on account of the public service, but for the private gain and benefit of the said T. W., and with intent to defraud the said United States, and as false pretences to enable him to obtain to his own use and benefit the said two sums of $500 each; and that by means of the said several false pretences the said T. W. did, at the time and times aforesaid, defraud the said United States of the said two sums of $500 each, and dispose of the same to his own use and benefit, to the great damage of the United States, and against the peace and government thereof.” There is another similar count, upon another similar transaction, for $750, with the like averments.
. To this indictment there is a general demurrer and joinder. By the demurrer the facts are admitted, if they amount to an indictable offence at common law, and are well set forth.
The first ground of demurrer relied upon Is, that the United States, as a nation, has no common law, in relation to crimes and offences; and, consequently, that there can be no common-law ofGences against the United States, in its national character; that this offence, if it be an offence, is against the United States in that character, and not as the local sovereign of this district;, and, therefore, it is not an indictable of-[425]*425fence. It is said that this conrt can only-exercise the jurisdiction of federal courts and of the state courts. That the federal courts could not hold jurisdiction of this cause, because it is not a criminal offence against the United States, who have no criminal common law. And that the state courts could not hold jurisdiction of it, because, if it be an offence at all, it is exclusively an offence against the United States. This argument is certainly, at first view, quite plausible; but to our minds not entirely satisfactory. Is it clear that this offence is of such an exclusive character, that it could be prosecuted only in a court of the United States? If it had been committed in one of the states, say in Maryland, is it clear that it would not have been an offence against that state? The offence charged, we will say, for the sake of argument. is in substance a cheat; that is, an act of fraud, done to the injury of the United States. The state court has jurisdiction of cheats and frauds. Does that jurisdiction depend upon the question, to whose injury the cheat or fraud was committed? Whether it be to the injury of a citizen of Maryland, or of a foreigner, or of another state, or of a foreign sovereign, or of the United States? If a fraud to the injury of the state of Pennsylvania should be committed in Maryland, it could not be tried in Pennsylvania; and shall it be said that it is no crime in Maryland to do an unlawful act to the injury of Pennsylvania? What is there in the circumstances of the transaction, to make it a case of exclusive federal jurisdiction? Is it because the defendant is stated to have been fourth auditor of the treasury of the United States? He is not charged with having done any act in that character, or by-color Of that office; nor is he charged with the violation of any official duty, nor with having made use of his office, or official character, to perpetrate the fraud. Is it because the person, upon whom the drafts were drawn, was an officer of the United States? That circumstance is perfectly immaterial, and cannot change the nature of the transaction. The foundation and substance of the offence is fraud,—moral fraud, —crimen falsi; the turpitude of which is neither increased nor diminished by the circumstance, that the draft was drawn by one officer of the United States, and accepted by another, neither of them acting in his official character, nor by virtue of his office. Is it because the fraud was committed by means of a requisition from the navy department upon the treasury of the United States? That circumstance does not alter the nature of the offence; it is still a simple cheat or fraud. Is it because the United States is the sufferer by the fraud? The same answer may be given,—the nature of the offence is not thereby altered. We are, therefore, of opinion that there is nothing in the character of the parties, or in the circumstances of the transaction, which would make it a case of exclusive federal jurisdiction; but that if it be, in its nature, a common-law offence, and had been committed in a state, it might have been tried in a state court, as an offence against that state. We think, therefore, that if it be a common-law offence, committed in this county, it is within the jurisdiction of this court, whose common-law jurisdiction is derived, from the common law of Maryland, which, was, by the cession of Maryland and the acceptance of congress, under the provision in the constitution of the United States,, transferred from Maryland to the United States, with that remnant of state sovereignty, which, after the adoption of the federal constitution, was left to Maryland. All the state prerogative which Maryland enjoyed, under the common law, which she adopted, so far as concerned the ceded territory, passed to the United States. All the power which Maryland had, by virtue of that common-law prerogative, to punish, by indictment, offenders against her sovereignty, and to protect that sovereignty, became vested in the United States; and authorized them to punish offenders against their sovereignty, and to protect that sovereignty by the same means, so far as regarded the territory ceded. We therefore think that, in regard to offences committed within this part of the district, the United States have a criminal common law, and that this court has a. criminal common-law jurisdiction.
The next ground of demurrer is, that fraud is not an indictable offence at common law, unless it be effected by means of some false public token, such as false weights, or meas- • ures, or marks; or by means which affect the public generally, unless it be fraud against the king, and the public at large; and, even then, it is not sufficient that the king, or the public at large, is the party injured, but the fraud must be effected by means which are likely to affect the public at large, —means which are generally mischievous, such as adulterating provisions, &e. But to this it was answered, that frauds affecting the public at large, or the public revenue, constitute a distinct class of cases, punishable by indictment, although the fraud be not effected by means of false public tokens, or by forgery, or by conspiracy, or by any particular sort of means; and this position, seems to be supported by principle and by precedents.
1. By principle. Why are any acts made-punishable by public prosecution? Because they are acts which, in their nature, are-injurious to the public interests. The interests to be protected by the government are, the public peace, the public morals, the public property, and the public justice. Why is theft or robbery an offence against the state? Because they lead to a breach of the peace, to violence and bloodshed, in the protection or the recovery of the property [426]*426■stolen. Why are public lewdness and disorderly houses indictable offences? Because they tend to injure the public morals, they are mischievous to many,—to an indefinite number,—to the public at large. Why are violations of the public ■ property offences against the state? Because- they immediately affect the public interest,—the interest of an indefinite number, who cannot individually complain,—whose separate interest is not injured, but who, collectively only, are sufferers; and who, collectively only, have the right to seek redress. Why are acts which tend to obstruct the due administration of justice indictable offences? Because they are, in their nature, injurious to the public at large; for the due administration -of justice is necessary to the protection of all the other great interests of society. To such cases the rule, vigilantibus non dor-mientibus jura subveniunt. cannot apply. The public cannot, like an individual, be always on the watch. If they employ agents, those agents may sleep, or, what may be worse, they may wink; and how can the public watch the winker? The public is continually exposed to imposition; and if they trust, it is because they are obliged to trust. Their confidence is not voluntary, like that of an individual, who may transact his own business. The public can act only by agents, and cannot, therefore, be subjected to the rule of watchfulness. The principle, therefore, which, in transactions between individuals, requires, in order to make the fraud indictable as a public of-fence, that it should be committed by means ■of tokens, or false pretences, or forgery, •or conspiracy, does not apply to direct frauds upon the public.
2. This distinction in principle is illustrated by many precedents, which are collected by the elementary writers upon this subject. East, in his Pleas of the Crown (page 821), prefaces his collection of them by this observation—“So all frauds affecting the crown, and the public at large, are indictable, though arising out of a particular transaction, or contract with the party. This was admitted by the very terms of the objection in the following ease.” He then proceeds' to give the substance of the indictment in Treeves’s Case, from the manuscript notes of Judge Buller, and the other judges. It was for knowingly, wilfully, deceitfully, and maliciously furnishing certain French prisoners, whose names-were unknown, then being under the king’s protection in Eastwood Hospital, five hundred pounds of unwholesome bread, whereby they became injured in their health, to the great •damage of the prisoners, the discredit of the king, the evil example, &c., and against the peace. ' The objection was, that it did not appear that what was done was in breach of any contract with the public, or of any moral •or civil duty This objection was overruled, but it did not appear upon what ground; nor is it material, because the case is cited for the principle admitted in the objection; which principle is, that if it had been in fraud of a contract with the public, the indictment would have been good. It may have been supported upon the principle which we have before assumed, that a fraud, which is to the injury of an indefinite number of persons, who have no separate individual cause of complaint, is indictable at common law. Such was the case in 2 Chit Cr. Law, 559, 560, against a baker, for delivering bread short in weight, under a contract with the guardians of the poor of Norwich, “to the great damage and prejudice of the said poor persons, of and belonging to the said city of Norwich and the liberties thereof, for whose use, sustenance, and support the said loaves of bread were so made and delivered, as aforesaid.” Here the immediate injury was done to a sort of public,— a quasi public,—the poor of the city; an indefinite number of persons, who, individually, could not prosecute, unless for separate and individual injury actually received, as in the case of a public nuisance. Chitty, in his note to this ease, says—“This indictment, for nondelivery of bread of sufficient weight, was settled on the decided opinion of a very experienced barrister, that the offence was indictable, on the ground stated in 2 East, P. C. 281 (821);—that all frauds, affecting the public at large, are indictable, though arising out of a particular transaction or contract.” The case of Dixon, in 3 Maulé & S.' 11, was for furnishing unwholesome bread for the children at the Royal Military Asylum at Chelsea. This was an indictment at common law, and had three ingredients, either of which was sufficient to support it, namely: First, that it was a fraud upon the government, the asylum being a royal institution; second, that it was to the injury of an indefinite number of children, who were supported at the asylum; and, third, that the means used, namely, selling of unwholesome bread, were such as were likely to injure the public at large. No question was made whether it was not an offence at common law. In Powell’s Case, 1 Dall. [1 U. S.] 47, the principle is more clearly recognized by the supreme court of Pennsylvania. It was an indictment at common law against a baker employed by the army of the United States, for a eneat in baking two hundred and nineteen barrels of bread, and marking them as weighing eighty-eight pounds each, whereas they weighed only sixty-eight pounds. It was objected that such fraud was not indictable at common law. But “the court said that this was clearly an injury to the public; and the fraud the more easily perpetrated, since it was the custom to take the barrels of bread at the marked weight, without weighing them again. The public, indeed, could not, by common prudence, prevent the fraud; as the defendant himself was the officer of the public, pro hac vice. They were, therefore, of opinion that the offence was indictable.” Here it is evident, that the ground upon which the indictment was obtained was, the injury to [427]*427the public. So in the case of Rex v. Bembridge, cited in 6 Bast, 136, “who were indict•ed for enabling persons to pass their accounts, -at the pay-office, in such a way as to enable them to defraud the government; it was objected, that it was only a private matter of account, and not indictable; but the court held otherwise, as it related to the public revenue.” In Brown’s Case, 3 Chit. Cr. Law, 701, the indictment was against an overseer •of the poor of the parish of Twickenham, for fraudulently applying to his own use money received by him for the parishioners, and rendering false accounts, to conceal the fraud, “to the damage and impoverishment of the said parishioners.” This was a fraud upon an indefinite number of persons, who could not individually obtain redress. See, also, Martin’s Case, 3 Chit. Cr. Law, 704. Other cases of indictments for frauds upon the parish, may be found in Comb. 287; 5 Mod. 179; 2 Camp. 269; 1 Both 342; 2 Nol. Poor Laws, 248, 371. Robinson’s Case, 3 Chit. Cr. Law, 666, was an indictment against a surveyor of highways, for a fraud upon the parishioners, by appropriating gravel, labor, &c., to his •own emolument. So in the Case of Minister, •etc., of St. Botolph, 1 W. BL 443, the rendering of a false account of moneys collected for the relief of certain sufferers by fire was said to be an indictable offence. This could only be because it was a fraud upon an indefinite •number of persons, who had no individual means of redress. So a fraud upon a parish by procuring the marriage of a pauper, so as to charge the parish, is indictable, upon the same principle. Tarrant’s Case, 4 Burrows, "2106. So also a fraud by an apprentice in obtaining the public money, by falsely enlisting himself as a freeman, is indictable at common law, because it concerns the public revenue. Jones’ Case, 1 Leach, 174.
These cases seem to establish the broad •principle stated by East in his Pleas of the Crown, 818, 821, “that all frauds affecting the •crown and the public at large,” or effected “by any deceitful and illegal practice or token, (short of felony,) which affects, or may affect the public, are indictable offences at common law; and that under the terms ‘public,’ and ‘public at large,’ are included indefinite numbers of persons who have suffered a common or joint damage by reason of the fraud, •and who have not individually a right to prosecute the offender.” In regard, however, to the present indictment, it is not necessary to •extend the principle beyond fraud upon the public, if such be sufficiently set forth in the indictment.
. The question then occurs, Does this indictment sufficiently set forth a fraud upon the public? By the long established rules of criminal law in this country, every indictment must be “certain to a certain intent in general;” and “nothing material shall be taken by intendment.” 2 Hawk. P. C. c. 25, § 60; Bayard v. Malcom, 2 East, 33. In the case of Rex v. Mayor, etc., of Lyme Regis, Doug. 158, Mr. Justice Buller says: “Certainty, to a certain intent in general means what upon a fair and reasonable construction may be called certain, without recurring to possible facts which do not appear; and is what is required in declarations, replications, and indictments, in the charge or accusation, and in returns to writs of mandamus.” “The charge must contain such a description of the crime, &c. that without intending anything but what appears, the defendant may know what he is to answer, and what is intended to be proved, in order that the jury may be warranted in their verdict, and the court in the judgment they are to give.” Rex v. Horne, Cowp. 682; 1 Chit. Pl. 237. It is true, “that it is a maxim, in pleading, that every thing shall be taken most strongly against the party pleading; or rather, that if the words be equivocal they shall be taken most strongly against the party-pleading them; for it is to be intended that every person states his case as favorably to himself as possible; but the language of the pleading is to have a reasonable intendment and construction; and where an expression is capable of different meanings, that shall be taken which will support the declaration, &c., and not the other, which would defeat it.” Wyat v. Aland, 1 Salk. 325; Rex v. Stevens, 5 East, 257; Amhurst v. Skynner, 12 East, 270; and Woolnoth v. Meadows, 5 East, 463.
The first question upon this point is, whether, if any fraud is sufficiently set forth in the indictment, it is a fraud upon the public. It has been suggested, in argument, that as the money was charged by the United States to the account of Mr. Paulding, who is responsible for it, it was his money, and not the money of the United States, which was. drawn out of his hands by the accused; and that, as Mr. Paulding is liable to the United States, and has given security, they have suffered, and can suffer, no loss; and, therefore, if any fraud was committed, it was a fraud upon Mr. Paulding, and not upon the United States. But to this objection we think it may be answered, that it is not averred, in the indictment, that the money was charged to Mr. Paulding; it is only averred that it was “placed in his hands” “as navy agent;” and there is nothing stated in the indictment to show that it ceased to be public money in his hands. By the 4th section of the act of congress of the 3d of March, 1809 (2 Stat. 535), the navy agents are directed, “whenever practicable, to keep the public moneys in their hands in some incorporated bank, to be designated for the purpose by the president of the United States.” This clearly shows that the understanding of the legislature was. that the money, when it came into the hands of the agent, did not cease to be public money; and that if it should be lost without any negligence or fault of the agent, it would not be his loss, but that of the United States; and if the money should have been charged to him [428]*428In account, we must suppose that under such circumstances the United States would credit him for the loss.
It has been suggested, on the part of the accused, that he is only liable to the United States in a civil action for the money which he received. But if he is so liable, it must be upon the ground that the money which he received was the money of the United States. If Mr. Paulding was induced to pay these drafts by such artful contrivances or false pretences or tokens as could not be guarded against by ordinary care and prudence, the United States might, very justly, allow him credit for the loss; and as the loss in that case would fall on the United States, it would be a fraud on the public; and how would it be less a fraud upon the public if Mr. Pauld-ing was not so deceived and imposed upon, but paid the drafts, knowing that the accused had no right to draw? It could not have been less a fraud upon the United States if others had participated in it. For these reasons we think that the money drawn by the accused, out of the hands of Mr. Paulding, was the money of the United States; and therefore that the fraud, if any, was a fraud upon the public.
The next question is, whether the fraud be sufficiently set forth in the indictment. An indictment must be at least as certain and precise as a special verdict, in which no material fact can be inferred. This indictment is undoubtedly intended to be for a fraud, and ought to aver the means by which the fraud was effected. This is admitted by the terms of the indictment; for it avers “that by means of the said several false pretences, the said Tobias Watkins did, at the time and times .aforesaid, defraud the said United States of the said two sums of five hundred dollars each, and dispose of the same to his own use and benefit, to the great damage of the United States, and against the peace and government thereof.” The offence, therefore, which the accused is called upon to answer, is a fraud upon the United States, perpetrated by means of the false pretences previously set forth in the indictment; yet there is not, in the previous part of the indictment, any direct averment of any pretence, either true or false. It is true that there is a preceding averment “that the said letters and drafts, so as aforesaid written and sent and drawn and sold, and caused and procured to be issued as aforesaid, were, and each of them was, so written, sent, drawn, and sold, and caused and procured to be issued as aforesaid, without any authority therefor, and not for or on account of the public service, but for the private gain and benefit of the said Tobias Watkins, and with intent to defraud the United States, and as false pre-tences, to enable him to obtain to his own use and benefit the said two sums of five hundred dollars each/’ But it does not state what the pretence was. It does not state that the accused pretended or affirmed any thing to anybody. If there was no pretence there was no false pretence. Let us analyze this averment, and apply, as was, no doubt, intended, singula singulis. It is: (1) An averment that the letters were written without authority. (2) That they were sent without authority. (3) That the drafts were drawn without authority. (4> That they were sold without authority. (o> That the requisition was obtained without authority. (6) That these things were not done for or on account of the public service, but for the private gain and benefit of the accused, and with intent to defraud the United States. But it is not averred that the accused ever pretended to any one that he had authority to write those letters, or to draw the drafts, or to obtain the requisition, or that they were for the public service, or that they were not for his own use. It is true that it is previously averred, in the indictment, that he did “ostensibly for the public service, but falsely and without authority, cause and procure to be issued from the navy department a certain, requisition,” &c. But the words “ostensibly for the public service” do not amount to an averment that the accused pretended or affirmed to the secretary of the navy, or to any other officer of the navy department, that the-requisition was for the public service. But it is averred that the letters were written and sent, and the drafts were drawn and sold, and the requisition was obtained, “as false pretences.” The word “as” means like—not the thing itself, but something like it. But if it were to be construed as an averment that the letters, the drafts, and the requisition were false pretences, and by means of such false pretences the accused defrauded the United States, such an averment in an indictment is not sufficiently certain. The averment must state what was pretended; and that what was pretended wás false; and wherein and in what particular it was false. The gist of the crime is the falsehood of the pretence; and it is therefore necessary that it should be made apparent upon the face of the indictment by positive and precise averments. This rule is supported by many authorities. One only will be cited. It is the case of Rex v. Perrott, 2 Maule & S. 379. It is true, that this was an indictment upon the statute of 30 Geo. II. e. 24; but the statute does not require that the pretences should be particularly set out, nor specifically negatived, the words of the statute- being merely these: “That all persons who knowingly or designedly, by false pre-tence or pretences, shall obtain from any person or persons, money, goods, wares, or merchandises, with intent to cheat or defraud any person or persons of the same,” “shall be deemed offenders against law and the public peace,” and shall be punished by fine, imprisonment, pillory, whipping, or transportation, &e. But the judgment of the court was only an application of a general rule in regard to all indictments, whether upon a statute or the common law. The indictment averred that the defendant, intending “to cheat and defraud one Bullen of his moneys,” &c., “un[429]*429lawfully, wickedly, knowingly, and designedly, did falsely pretend to the said Bullen, that he, the defendant, could obtain a protection for Bullen by favor of the lords of the admiralty, by feeing the clerks, as he had an uncle, a lord of the admiralty, and that it would be no great expense, as he could get it done through favor,” &e., “by means of which said several false pretences” the defendant obtained the money, &c. The cause was brought up from the assizes to the king’s bench by writ of error; and the error assigned was, that there was no averment to falsify the matters of the several pretences set forth in the indictment, by which it could appear to the court, upon the face of the indictment, that any or either of the pretences alleged was false and untrue. Lord Ellenbor-ough, in delivering his opinion, said: “Every indictment ought to be so framed as to convey to the party charged a certain knowledge of the crime imputed to him.” “To state merely the whole of the false pretence, is to state a matter generally combined of some truth as well as falsehood. It hardly ever happens that it is unaccompanied by some truth. Suppose the offence, instead of being comprised within five or six-separate matters of pretence, as here, had branched out into twenty or thirty, of which some might be true, and used only as a vehicle of the falsity; are we to understand from this form of charge, that it indicates the whole to be false, and that the defendant is to prepare to defend himself against the whole V That would be contrary to the plain sense of the proceeding, which requires that the fabrication should be applied to the particular thing to be falsified, and not to the whole. And the convenience also of mankind demands, and in furtherance of that convenience it is part of the duty of those who administer justice to require, that the charge should be specific, in order to give notice to the party of what he is to come prepared to defend, and prevent his being distracted amidst the confusion of a multifarious and complicated transaction, parts of which only are meant to be impeached of falsehood.” “It has been argued, that perhaps every one of these charges may be false; but the rule, as it has been derived from cases of a mixed nature, where part is true and part false, has introduced a course of separating, by specific averments, all that which is intended to be relied upon as false. The analogy to the crime of perjury is so strict, and justice also suggests the same, that I think it should be specifically announced to the party, by distinct averments, what the precise charge is. It has always been done in indictments for obtaining money by false pretences; and whenever a more general form of indictment has come under consideration, it has not met with countenance; but the court, as in Itex'v. Mason, have reprobated it. If it were good, every man might be brought into court without any possibility, of knowing how to defend himself.” Mr. Justice Le Blanc in the same case said: “The argument is, that alleging that the defendant did falsely pretend,” &c., generally, and in a lump is equivalent to an averment that each of those pretences was false. But a number of pretences may consist of some facts which are true, and some false; and it is a necessary rule in framing indictments not only that the offence should be truly described, but that it should be described in such a manner as to give the party indicted notice of the charge. Therefore, when a party is charged with obtaining money under false pretences, the indictment ought to state in what particular such pretences are false. Here it is charged in the first count, that the defendant did falsely pretend “that he could obtain a protection from the lords of the admiralty, by feeing the clerk, as he had an uncle, a lord, and that it would be no great expense.” “Now that is a pretence consisting of several facts, part of which may be true, and part false. It may be true that he had an uncle, a lord of the admiralty; and if he had, it does not follow that the rest may not be true; therefore the indictment should have charged what part was false.” This case shows that, according to the general rule of certainty applicable to indictments, the particular pretences must be set forth, and it must be averred in what particulars they were false. We are, therefore, of opinion that this cannot be sustained as an indictment for a fraud or cheat by false pretences.
But it has'been contended, that it is a good indictment for a forgery at common law. The forgery, it is said, consists in having, “ostensibly for the public service, but falsely, and without authority, caused and procured to be issued from the navy department of the United States,” the requisition set forth in the indictment. It is a sufficient answer to this idea to say, that the indictment itself admits it to be a true requisition, and contains no allegation that the defendant forged and counterfeited it.
The second count does not vary, substantially, in point of law, from the first. Upon the whole, the judgment of the court upon this demurrer, must be for the defendant.
The indictment upon the transaction with Mr. Harris, differs, in matter of law, from that upon the transaction with Mr. Paulding, in the following particulars only, namely: (1) That it avers that two of the drafts drawn by the defendant upon Mr. Harris, were drawn in favor of a certain Thomas B. Pottinger, and sold by the defendant with the indorse-ments thereon of the said Pottinger, to 0. S. Fowler, and “that the indorsements of the said Pottinger on the said drafts, were either the genuine indorsements of the said Pottin-ger, made thereon by him for the accommodation, and at the request of the said Watkins, and without any interest of the said Pottin-ger therein; or were falsely made thereon by the said Watkins.” (2) That it avers that Mr. Harris, being navy agent, on the 30th of September, 1827, at Boston, “made out his [430]*430abstract of expenditures, as such navy agent, as required by the rules and orders of the navy department of the United States, for the 3d quarter of that year, ending on the said 30th of September; which abstract contained, among many other charges of expenditures as aforesaid, the following three items and charges, under the head of arrear-ages prior to 1827:
107. Sept. 1. T. Watkins draft $300
16N. •• 10. do. do. of $500 499.50
169. “ 22, do. do. 500
-$1,299.50
—which abstract is set forth in words and figures; and it is further averred that the drafts referred to in the said three items were the drafts before charged to have been drawn in favor of O. S. Fowler. The indictment then proceeds thus: “And the said Harris, having transmitted the said abstract to the said Watkins, as fourth auditor of the treasury of the United States, who was the proper officer to receive the same, the said Watkins, in pursuance of his said fraudulent intent to deceive and defraud the said United States, and to consummate his said fraud, and to cover and conceal the same, that he might thereby be enabled to keep to his own use, the moneys he had obtained by means of the said drafts, and thereby to defraud the United States, did, afterwards, to wit, on the day and year aforesaid, at the county aforesaid, falsely and fraudulently alter the said abstract, by erasing therefrom the words:
T. Watkins draft
do. do. of $500.
do. do.
opposite to the said dates of September 1st, 10th, and 22d, prefixed to the aforesaid three items and charges in the said abstract under the head of “arrearages prior to 1827, here-inbefore set out, with intent to defraud the United States.” And there is a subsequent averment, that the letters, drafts, and requisition, “and also the erasure of the said abstract, were made and done with intent to defraud the United States, and as false pre-tences to enable him to obtain and keep to his own use and benefit, the said several sums of money therein mentioned; and that by means of the said several false pretences, the said Tobias Watkins did, at the time and times aforesaid, defraud the said United-States of the said several sums, amounting to the - sum of $2,000, and dispose of the same to his own use and benefit, to the great damage of the United States, and against the peace and government thereof.”
The averment respecting the indorsement of Mr. Pottinger, seems to be wholly immaterial to the charge contained in this indictment, which, like that in the other indictment, is for obtaining money by false pretences, and there is no false pretence alleged in regard to that indorsement. But if it were material, its alternative form would render it perfectly nugatory. It is an averment that it was made either by Mr. Pottinger, or Mr. Watkins, without fixing it upon either. This averment has no connection with the charge, and may be considered as mere surplusage. The erasure of part of the abstract is charged to have been done-by the defendant as a false pretence for obtaining the money for his own use. The indictment- itself shows this to be impossible, because it shows that the money was obtained before the erasure was made. But it is. also averred, that it was done by the defendant to enable him to keep the money to his. own use. But the offence charged is not the keeping the money, but the obtaining it by false pretences. The erasure, however, is also averred to have been made with in-ent to consummate his said fraud, that is, the fraud in obtaining money by false pretences. But the indictment shows that that fraud, if committed at all, had been consummated before the erasure was made.
It is also averred, that the erasure was. made with intent to cover and conceal his said fraud; but the charge in the indictment is for perpetrating, not for covering and concealing, the fraud. This averment, therefore, so far as it regards the charge in the indictment of obtaining money by false pretences, is wholly immaterial and irrelevant, and. therefore may, in that respect, be considered as mere surplusage. But it is said, that the averment concerning this erasure, constitutes a substantive and sufficient charge of another offence, namely, a charge of forgery at common law;, and that whether the indictment be good or bad as an indictment for obtaining money by false pretences, it is good, as an indictment for forgery. It cannot escape our notice, that the only injury to the-United States complained of in this indictment is by the fraud committed by false pre-tences; and that this forgery, if it be one, is only alleged incidentally as one' of those pretences. The defendant was not informed by this indictment that he was to come prepared to answer to the crime of forgery. It contains but one count, and that is for obtaining money by false pretences; and if that same count contains also a specific charge of forgery, it is bad for duplicity. No man is bound to answer to two or more criminal offences in one count; and even if they are contained in several counts, and be not of the same nature or class, the court wilL compel the prosecutor to elect that upon which he intends to put the accused upon his. trial (Young v. Bex, 3 Term R. 106); but in no case is he permitted to join several of-fences in one -count. In civil actions, advantage can be taken of duplicity only by special demurrer; but. in criminal cases it is. fatal cm general demurrer. Archb. Cr. Pl. 25; Com. v. Symonds, 2 Mass. 163; U. S. v. Sharpe, 1 Pet. [26 U. S.] 131; State v. Montague, 2 McCord, 287.
The present count undoubtedly contains a. clear and distinct, although not a sufficient. [431]*431charge of fraud by false pretences. If it contains also a charge of forgery, it is bad for duplicity. It does not, however, seem to us to contain a charge of forgery as a separate offence. What is said of the erasure .is merely surplusage. If this indictment cannot be supported as an indictment for forgery, (and we think it cannot,) it is bad as an indictment for obtaining money by false pretences, for the reasons stated respecting the preceding indictment. The judgment upon this demurrer, also, must therefore be for the defendant.
Mr. Key, for the United States,
presumed' that it would not be thought either unreasonable or disrespectful to the court, that his learned associate (Mr. Swann, the district attorney,) and himself had thought themselves justified and bound to offer an argument on this occasion. That this duty was, in some measure, thrown upon them by the circumstance, that the ground on which the-indictments were now held to be insufficient was not touched by the argument offered under the former demurrers, and only now brought to their view, and the strong conviction they felt that it could he shown to be untenable. They therefore hoped that, if the question presented by the present demurrer was the same, in every respect, with those already settled by the court, the court would reconsider their determination of this question; and, if they had inadvertently decided what was inconsistent with the principles they had themselves laid down, they would retract it. He thought also, that the indictment now in question might possibly be considered by the court as presenting a different question, though he confessed that, to himself, it appeared to present the same. He considered that two questions were- now settled, as to this and the other indictments, by the opinion delivered: First, that defrauding the United States was indictable at common law, without the use of false pretences; secondly, that these indictments, as indictments for using false pretences, were not sustainable.