concurring:
I concur in the opinion and order.
I deem it proper to express my views on a principle of law applicable to and concurrent with that expressed by Mr. Justice Coleman.
The statute of Pennsylvania, defining the crime with which it is sought to charge petitioner in the indictment here in question, is as follows :
“Any banker, broker,’ or officer of any trust or savings institution, national, state or private bank, who shall take and receive money from a depositor with the knowledge that he, they or the bank is at the time insolvent, shall be guilty of embezzlement, and shall be punished by a fine in double the amount so received, and imprisoned from one to three years in the penitentiary.” (Purdon’s Digest, 13th ed. p. 942, par. 195.)
The term “officer,” as used in the statute of Pennsylvania under which the indictment here in question was found, is a generic term, one embracing a general class. The specific capacity of the party sought to be charged as an officer should be alleged.
We were reminded by counsel for the State of Pennsylvania in his argument that our action in this matter might be reviewed by the Supreme Court of the United States, and it may not be amiss to look to the expression of that august tribunal for guidance. Moreover, we may with confident propriety turn to the decisions upon the subject and take light from the assertions of the courts of the demanding state.
In the case of United States v. Hess, 124 U. S. 483, 8 Sup. Ct. 571, 31 L. Ed. 516, the Supreme Court of the United States was called upon to consider the aver-ments of an indictment by which it was sought to charge *149a person with the violation of section 5480 of the Revised Statutes of the United States (U. S. Comp. St. 1916, sec. 10,385). The court, speaking through Mr. Justice Field, said:
“The statute upon which the indictment is founded only describes the general nature of the offense prohibited; and the indictment, in repeating its language without averments disclosing the particulars of the alleged offense, states no matters upon which issue could be performed for submission to a jury. The general, and, with few exceptions, of which the present is not one, the universal, rule on this subject is, that all the material facts and circumstances embraced in the definition of the offense must be stated, or the indictment will be defective. No essential element of the crime can be omitted without destroying the whole pleading. The omission cannot be supplied by intendment, or implication, and the charge must • be made directly, and not inferentially, or by way of recital.”
In this case the court referred to its former decision (United States v. Cruikshank, 92 U. S. 542, 23 L. Ed. 588), and approvingly quoted the language:
“It is an elementary - principle of criminal pleading that where the definition of an offense, whether it be at common law or by statute, ‘includes generic terms, it is not sufficient that the indictment shall charge the offense in the same generic terms as in the definition, but it must state the species; it must descend to particulars.’ ”
Supporting this same general rule we find the cases of United States v. Carll, 105 U. S. 611, 26 L. Ed. 1135, and United States v. Simmons, 96 U. S. 360, 24 L. Ed. 819.
In the indictment here in question the expression is used: “P. V. Rovnianek, * * * being then and there an officer of a certain private bank,” etc. This, it is contended, is in the language of the statute. Under the cases cited and under the rule of criminal pleading there referred to it is not sufficient to charge the commission of a crime by using the language of the statute, where such language, as in the statute of Pennsylvania under *150consideration, uses only the generic or general term, within which may be embraced any number of specific designations.
The indictment here in question, and by reason of which the executive warrant of the governor of this state issued, fails, in my judgment, to set forth the essential elements of a crime under the statute of Pennsylvania for reasons other than that heretofore considered. In this respect we need look no further than to the expression of the courts of the demanding state made with reference to the identical statute.
In the case of Commonwealth v. Delamater et al., 2 Pa. Dist. R. 118, the court had before it the sufficiency of an indictment drawn under this code. There the court said:
“In order to sustain a conviction on an indictment under this statute it must be shown: (1) That the defendant was, at the time of the commission of the offense, a ‘banker,’ ‘broker,’ or ‘officer of a trust or savings institution, national, - state, or private bank.’ (2) That he took and received the money as a deposit from a depositor. [We italicize.] (3) That at-the time the deposit was received the ‘banker’ or‘broker,’ or in case of an officer, the institution of which he was an officer, was insolvent. (4) That the defendant knew at the time he received the deposit that he or, in case of an officer, the institution was insolvent. (5) That the money so received was embezzled, that is, unlawfully appropriated to the use of the defendant, or of the institution of which he was an officer. These are material elements in the crime. The indictment must charge that they existed in the particular case.”
There is no attempt in the indictment here under consideration to charge the receipt of money as a deposit from a depositor. Moreover, the indictment fails to assert that other essential element, declared so by the courts of the demanding state, actual insolvency. While this was but the decision of an inferior court, yet it appears to have remained undisturbed by the courts of *151last resort. The Supreme Court of Pennsylvania, in the case of Commonwealth v. Junkin, 170 Pa. 194, 32 Atl. 617, 31 L. R. A. 124, referring to the statute under which this indictment is found, said:
“There are three essential elements, which the commonwealth must prove beyond a reasonable doubt, before the jury can find the guilt which the act makes punishable: (1) Actual insolvency at the time the money is received; (2) knowledge of the insolvency; (3) the receipt of money as a bank deposit.”
By this declaration the courts of the demanding state have fixed at least three of the essential elements which it declared to be indispensable to establish the crime of embezzlement under this statute. The indictment here in question, and pursuant to which the executive warrant in this case issued, fails to measure up to the standard of requirements as thus asserted by the court of Pennsylvania.
Counsel for respondent appears to contend that it is not within the province of this court to investigate as to whether a crime is sufficiently alleged under the statute of Pennsylvania. They contend in this respect that that is a matter wholly within the province of the courts of Pennsylvania. This contention is, in my judgment, untenable. The right to take an individual from one state into another for the purpose of putting him on trial for a crime alleged is one which takes its authority from the constitution and statutes of the United States. The authoritative accusation of a crime against the laws of the demanding state is the principle underlying the right of extradition, the principle underlying the right and power of the governor of the asylum state to issue his executive warrant. The authoritative declaration of a crime against the laws of a demanding state must, of necessity, take the form of a pleading, regardless of the name or designation by'which that pleading may be known. It is by this pleading that the crime itself is declared and designated. (Roberts v. Reilly, 116 U. S. 80, 6 Sup. Ct. 291, 29 L. Ed. 544.) To *152every crime there are the essential elements. These are usually embraced within the general terms act and intention or criminal negligence. In charging an offense against the laws of the state, no essential element of the crime can be omitted without destroying the pleading. If the pleading is thus destroyed by reason of the omission of some essential element, then a crime is not alleged; and if a crime is not alleged, no extradition is authorized, and the requisition of the demanding state, as well as the executive warrant of the asylum state, is a nullity. In an instance such as this, where an individual may be taken from one state to another, or indeed may be taken across the continent under extradition proceedings based upon an indictment which the courts of the state to which he is to be taken have already declared to be insufficient to constitute a crime against the laws of that state, it appears to me to be not only inconsistent with the very fundamental elements of justice, but carrying argument to absurdity to say that the courts of the state from which he is to be taken may not, upon habeas corpus proceedings, inquire fully into the indictment or accusation or other pleading by which the crime is set forth, to determine indeed whether or not any crime is really alleged, and, if such is found wanting, may not restore the party to liberty.