I fully concur in the order sustaining the motion in arrest of judgment as to the fourth and sixth counts. According to the authorities cited on the argument it is clear that the act charged in the indictment is no offense against the laws of the United States, unless the fraudulent ballot alleged to have been received by the defendant was a ballot for a candidate for congress. U. S. v. Cahill, 3 McCrary, 200, 9 Fed. Rep. 80; U. S. v. Seaman, 23 Fed. Rep. 882. In the absence of any adjudication on the subject, I should have no doubt that such was the law of the case. In the nature of things, congress has no authority to impose penalties on a judge of election for receiving a fraudulent ballot, unless the ballot is cast for a candidate for some federal office. It is the single fact that the ballot alleged to have been received by the defendant affected the result of a congressional election that gives this court jurisdiction over the offense. Such being the law, it goes without sajdng that the indictment should show the character of the alleged fraudulent ballot, not by inference merely, but by plain and direct averment.
Now, in neither of the counts upon which a conviction was had is there any direct averment that the ballot in question was cast for a representative in congress. In the fourth count of the indictment it does *153appear that the election at which the ballot in question was received was an election at which a representative in congress was voted for, but we must take judicial notice that it was also a general state election for the election of numerous state and county officers, so that it by no moans follows as a necessary inference from anything stated in the count that the fraudulent ballot was cast for a candidate for a federal office. It would be consistent with all the averments of the count to assume that it was cast for a candidate for a state office only. The sixth count is even more defectivo, in that it is not averred in express terms that at the election in question a representative in congress was voted for. In my opinion, it would be violative of all rules of correct pleading to hold that the fourth and sixth counts of this indictment show that an offense has been committed against the laws of the United States. They can only be sustained by indulging in inferences favorable to the pleader that would hardly be tolerated in a civil proceeding, even after the rendition of verdict, and this is open to violation of the rule that an indictment should charge an offense with the highest degree of certainty.
In answer to the suggestion made on the argument of the motion that the defect in the indictment is cured by the statute of jeofails, section 1025, Rev. St. U. S., it is sufficient to say that the statute in question will not remedy a defect in an indictment of such a radical nature as a failure to charge an offense; and, even if the statute should be held to have such curative properties, it would be impossible to say, from a consideration of the indictment and the charge to the jury, that the defect in the indictment had not operated to prejudice the defendant. I may further add that section 5514, Rev. St. U. S., does not aid the indictment, as that section prescribes a rule of evidence only, whereas the indictment is faulty in failing to state an offense within federal cognizance. There is no escape from the conclusion thatthe judgment should be arrested.