dissented, and said, that on the day that the argument in this case was opened, he had not sat in Court, and the state of the weather, his ill health, and the distance of his residence from the court room, had put it out of Ms power to examine the authorities on the subject as closely as he could have wished; but he believed he had heard the main part of the argument, and had paid very close attention to it; and he had brought his mind to the conclusion, that the demurrer ought to be overruled, and that the indictment was sufficient. In many of the views of his brethren he had concurred; but as to the insufficient averment in the indictment of a fraud at common law, he differed from them.
There was not a single charge in it of an act done, that was not set out most specifically to have been done with a fraudulent design. He did not know, he said, what the precise duties of the Fourth Auditor are. He did not doubt that the Fourth Auditor might have had a right to demand of the Secretary of the Navy a requisition, and that the issuing of the requisition might, if properly done, have been a legitimate act, which could not be questioned here. But the design with which the requisition was procured to be issued must be looked at. Subsequent acts, said he, show the design to have been fraudulent; and it is sufficiently set out, in the indictment, that all the acts enumerated in the bill were fraudulent, and were, therefore, false pre-tences. He did not concur with his brethren in their disquisition as to the signification of the word “ as,” which, he said, did not merely mean similitude, but properly formed part of the sentence containing the allegation of false pretences. I think, said he, that the indictment is sufficient, and that it gives full notice to the party of the charges against him. He did not express his opinion more precisely, for the reasons which he had stated ; which was of less importance in this case, as his brethren had pronounced a contrary opinion. If this indictment was not a sufficient one, he concluded by saying he thought it was hardly possible to frame one that would sustain a prosecution for a fraud at common law against the United States.1
Wednesday, June 3d. A third indictment was this day presented to the Court, to which, also, there was a general demurrer.
This indictment charged that the defendant, being Fourth Auditor of the Treasury of the United States, and “ intending fraudulently and unjustly to obtain and acquire for himself and for *466his own private use, the money of the United States,” “ falsely and fraudulently” wrote a letter to Mr. Paulding, Navy Agent at New York, informing him that he had drawn on him for $300, to be charged to arrearages prior to 1827, under which head a remittance would be made to him, immediately on the secretary’s return to the city; and requesting Mr. Paulding, in the mean time, to pay the draft out of any unexpended balance in his hands, to be replaced on receipt of the treasurer’s remittance. That the defendant drew the draft, sold it to Mr. Fowler, received from him the money, and. disposed of it for his own use ; and that the draft was afterwards paid by Mr. Paul-ding.
That the defendant, “ ostensibly for the public service, but falsely, fraudulently, and without authority, caused to be procured and issued from the Navy Department of the United States a certain requisition to the Secretary of the Treasury of the United States, for the purpose and intent of placing in the hands of the said J. K. Paulding, Navy Agent, as aforesaid, the sum of $300 of the moneys of the United States, (which requisition is set out verbatim,) by which the money was placed in the hands of Mr. Paulding; and the indictment charges that the said letter and draft, 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 and 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 said United States, and as false pretences, to enable him to obtain and keep to his own use and benefit the said sum of $300 ; and that, by means thereof, the said Tobias Watkins did, at the time and times aforesaid, defraud the said United States of the said sum of $300, 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.”
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 be shown to be untenable. *467They 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.
Considering these two points as not to be disputed, now the question for consideration is this — Is this indictment, though insufficient for a fraud effected by false pretences, good, as an indictment at common law, for a fraud on the United States, without false pretences ? In other words, does the indictment, being insufficient for false pretences, vitiate it altogether, although there be a sufficient charge in it of a fraud on the United States ?
He contended’ that, if the indictment contained a sufficient charge of the latter offence, namely, a fraud upon the United States, which required no false pretences, (as is decided,) and set out, also, a fraud perpetrated by false pretences, which were insufficiently set forth, the indictment must be held good for the offence which was well laid, and the rest would be held surplus-age. It is on this ground that the indictments are now decided to be bad; a ground not taken in the argument.
He contended that the indictments were sustainable, as containing a charge of a fraud on the United States, which required no false pretences to be set out. The only argument urged against this position was, that a fraud upon the United States, like a fraud upon an individual, was not indictable unless effected by false pretences; and the Court has decided this question for us. It was never urged until now, in the Court’s opinion, that if such a fraud was indictable on account of its affecting the public, though unaccompanied by false pretences, yet that an indictment which sufficiently set forth such a charge, though it need set out no false pretences, would be wholly vitiated by undertaking to set out such pretences, and setting them forth insufficiently. He thought they would be able to *468satisfy the Court, from the clearest authorities, that the insufficient setting forth of such unnecessary matter could not vitiate what was sufficiently charged ; that “ utile per inutile non vitia-tur; ” and that, laying aside the averment of the acts being done as false pretences, there was, without it, a clear, definite, and sufficient charge of a fraud upon the United States, indictable, according to the Court’s opinion, at common law. Here, as he understood the opinion of the Court, was the point of difference. Though not necessary to set out the acts done as false pretences, yet, if they are so set out,-they must be proved as such ; and, if insufficiently set out, the indictment is bad. This is the opinion, and this the ground of it, upon which the decision is made against the indictments. He should endeavor, with all respect to the Court, to show that it had been inconsiderately adopted.
As it may, however, be questioned whether the indictment contains, apart from the alleged false pretences, a proper charge of a fraud upon the United States, he would first consider what such an indictment ought to allege, as a sufficient statement of such an offence. The offence is fraud upon the United States, and all that can be necessary to set out in the indictment is, that the party accused intended to defraud the United States ; that, in pursuance of that intent, he committed certain specific acts, and that, by those acts, the United States were defrauded. There can be no other necessary ingredient of the offence, according to the Court’s opinion; for that has determined that the gist of the offence is defrauding the public,— defrauding the public by any acts, whether false pretences or not. Now it cannot be pretended that any of those ingredients are wanting here. It is alleged that the accused, devising and intending to defraud the United States, wrote and sent the letter of advice set out in the indictment, made the draft, and procured the requisition to be issued ; and it is distinctly averred that, by these acts, he did defraud the United States of the sum of money mentioned in these instruments. Let the precedents be looked to, of the indictments for frauds on the public, in the cases cited in the argument, and they will be found to sustain this view of the case. None of them are more distinct and particular in their statements and averments, — few of them as much so, — as the indictment now before the Court. Here he referred to the indictment in the case of Jones, the apprentice, in 1 Leach, and of the Chelsea pensioner, and the overseers of the poor, in East and Chitty; and contended that these cases, and the clear principles of criminal law, showed that nothing else, could be necessary in an indictment than to state the intent, the fraud, and the acts by which it was perpetrated.
*469He proceeded, then, to inquire whether, as more than this was done, ■ — ■ as the acts by which the fraud is charged to have been effected are called “ false pretences,” or “ as false pretences,” (as the Court have considered, the averment,) with averments of the falsehood of the pretences, — 'this unnecessary addition to the indictment can be held to avoid it altogether, admitting it to be settled by the Court’s opinion that these aré not such false pre-tences, nor so set out as would be sufficient to sustain the indictment, as an indictment for obtaining money by false pre-tences. That all these parts of the indictment are unnecessary parts, either wholly irrelevant, or immaterial to the indictment, considered as an indictment for fraud on the United States, must be conceded, if he had correctly stated what such an indictment should contain.
The inquiry, then, is as to the effect of introducing unnecessary matter into an indictment which contains a sufficient charge of the offence. According to the Court’s opinion, it vitiates the whole indictment. The well settled principles of pleading, and the authority of numerous adjudged cases, will be found otherwise. 1 Chitty on Pleading, 231, 233, 234, 235; Archbold’s Crim. Pleading, 16. It is there plainly laid down, that matter wholly irrelevant, if stated, need not be proved; that matter relating to the offence, but not necessary to be stated, if stated, must be proved; and that in neither case can the introduction of such matter vitiate the indictment, declaration, or plea, (for there is no difference, as to this inquiry, between civil and criminal cases,) except where the matter thus unnecessarily introduced, shows that the party using it has no cause of action. In that case he agreed that the party, thus showing what defeats himself, makes his count good for nothing. But nothing short of this will have such an effect upon his pleading. It must, as both Chitty and Archbold state it, show that he has no cause of action, and the setting out of such unnecessary matter defectively and informally, is quite a different thing; the passage cited from Archbold, shows that it does not vitiate, and may be considered as surplusage. The cases by which both these writers illustrate the principle they lay down, make this distinction obvious. It is the distinction, well taken, — and which must be familiar with the Court, — between a cause of action defectively set forth, and a defective or bad cause of action. It may seem subtile ; but the least attention comprehends it. It may be Illustrated in the case of an indictment for forgery. You must charge the act done with intent to defraud another. To what extent and in what way the fraud was to affect him, need not be set out. But if you do set it out unnecessarily, and it appears from your own *470showing, that it could not in. any way defraud him, the indictment is bad. Not so if you set it out informally and defectively, so as not to appear whether it could or could not defraud him. The cases are innumerable which sustain this position.
In East’s Crown Law, 821, 822, is a case of indictment for a cheat at common law, by false pretences, which were by the Court deemed insufficient, so that that ground of the prosecution failed; yet the Court, seeing enough in the indictment to constitute a charge for conspiracy, apart from the false pretences, sustained it on that ground.
The next case also was for a cheat by false tokens, and the false tokens were not sufficiently set forth; but the Court sustained it as an indictment for forgery at common law, because it contained enough to constitute such a charge. So in Sweeps case, 1 Dal. 45, which was upon an indictment for forgery at common law; but the Court, being of opinion that the paper-altered was not the subject of forgery at cominon law, rendered judgment as for a cheat. So in 2 Mass. Hep. 77, the indictment was for forgery under a statute; and not being sustainable on that ground, the court sustained it as for a cheat at common law, and this Court and all other courts continually do the same thing. There is a large class of cases of indictments for various offences under particular statutes, and if the special circumstances necessary to bring them within the purview of the statute are insufficiently set out, the uniform and settled practice of this, and every criminal court, is to consider all those parts of the indictment which refer to -the statute, and which go to state and aver the offence to be within the statute, as mere surplusage, and to sustain the indictment upon the common-law charge.
The only remaining inquiry is this: Does the statement of the unnecessary matter in this indictment show a defect in any of the ingredients necessary to constitute the charge of a fraud upon the public ? The intent to defraud is plainly charged, the actual perpetration of the fraud as plainly, and the acts, by which the fraud was committed, are set forth; namely, the letter, the draft, and the requisition. Are these acts such as could not defraud the United States ? This is all that is left to hang an objection upon; and can the Court say that these acts cannot defraud the United States ? The only ground upon which it could be so pretended, is removed by the opinion delivered, that it was the money of the United States that was obtained by these acts, from Mr. Paulding, and that, if so obtained, it was a fraud upon them.
If such nice criticisms and objections are to be discussed, not only upon the material, parts, but upon every unnecessary state*471ment and averment that may be found in indictments, we shall have move than doubled upon us the evils that are already justly complained of. There was enough of this evil without such á practice, in the estimation of Lord Hale, who expresses himself thus upon the subject: “In favor of life, great strictness has been, at all times, required in point of indictments; and the truth is, that it is grown to be a blemish and inconvenience in the law and the administration thereof. More offenders escape by the over-easy ear given to exceptions in indictments, than by their own innocence ; and many times gross murders, burglaries, robberies, and other heinous and crying offences escape by these unseemly niceties, to the-reproach of the law, to the shame of the government, to the encouragement of villany, and to the dishonor of God. And it were fit, that by some law, this overgrown curiosity and nicely were reformed, which is now become the disease of the law, and will, I fear, grow mortal without some timely remedy.”
Mr. Key admitted, that in his view of this- case it presented the questions already decided. But he thought the Court’s view of these cases would oblige them to consider it differently. The Court had insisted that the former indictments were for obtaining money by false pretences. But he did not think that an 'indictment, charging .a fraud upon the public, in obtaining and keeping public money by certain acts specifically set forth, could be so considered because those acts were called false pretences. But the name thus given to those acts, it seemed, had unfortunately overthrown the indictments. Take away the name, and the indictments must have stood. For it has not been pretended in the argument, or in the opinion, that the acts of fraud are not set out with sufficient precision as acts of fraud. All the objection is, that they are not sufficiently set out as false pretences.
As the acts of fraud by which the intended offence was effected, they are set out with all the certainty and precision possible. The defendant is said to have written the letter, made the draft, and caused the requisition to be issued, with intent to defraud the "United States, and the letter and requisition are set out in words and figures; the letter dated, “ Treasury United States, Fourth Auditor’s Office,” and bearing on its face every official character; the requisition is averred to have been caused to be issued-without public authority, ostensibly for the public service, but falsely anjl fraudulently for his own use. It is plain that nothing more particular could be necessary, or perhaps possible, to say about these acts. The fraud consisted in these acts ; in these acts alone; unaccompanied by any other acts or circumstances. Nothing surely need have been said about *472them, but that the defendant committed them with the fraudulent intent charged. But still these acts were called false pre-tences, and the indictments are bad.
Now it has so happened, that the indictment now before the Court does not give to the acts of fraud this unlucky name.
In the conclusion of these indictments, where alone this appellation is pretended to be given to the fraudulent acts, there will be found a little variation in the language. The former indictments spoke of these acts “ as false pretences,” and then said, “by means of which said false pretences” the United States were defrauded.
The indictment now before the Court speaks of the acts “ as false pretences,” and adds, that “ by means thereof” the United States were defrauded. “ By means thereof” is, by means of the acts before set out; and the averment therefore is, that by the acts set forth the United States were defrauded, and not that the United States were defrauded by means of false pretences; so that this indictment is clear of any averment of false pretences, which was fatal to the others.
If it be said that it charges them to have been done and used “ as false pretences,” then we say, with the Court, that as means like ; and that the averment is, that the fraud was committed by means of certain acts, which were not false pretences, but like false pretences ; so that the former indictments were for frauds by false pretences, and this is for a fraud by acts like false pre-tences, and thus, not having the ill-fated name given to the acts, it is clear of the faults of the other indictments.
Mr. Key also referred to Lindsay’s case, in this Court, (1 Crunch, C. C. 245,) indicted under the Maryland Act of 1723, c. 16, for that he, being a shop-keeper, sold liquors to slaves on Sundays, and kept a disorderly house. It was objected that the Act of 1723 did not apply, because there was no averment that the traverser was a house-keeper, as required by that act; and that the indictment could not be sustained under the Act of 1784, because it was not averred that he was a retailer. But it was contended that, if not good under the statute, it was good at common law, for keeping a disorderly house, and it was so decided by the court.
Mr. Key also cited the following passage from Starkie’s Criminal Pleading, p, 103 — “ Next it is to be considered how far it is necessary to particularize, in describing the means of effecting a fraud. And first it may be observed, that if some means be'specified, and by those the fraud could have been effected, no objection can be taken on the ground that the description is not sufficiently circumstantial.”
*473Mr. Swcmn, District Attorney, on the same side, complained that the decision of the Court had left him in doubt as to the course he ought to pursue in framing new indictments upon the same transactions, and he was glad that this third indictment would afford the Court an opportunity of revising its decision.
The Court, in their opinion, seem to require averments which it may not be in the power of the government to sustain. The Court has said, that the cases cited “ 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, are indictable offences at common law.”
All, then, which was necessary in the indictment was, to set forth a fraud upon the public; and the Court went into an examination of the indictment, to see whether a fraud upon the public was sufficiently set forth. In this case, then, we must inquire whether the fraud alleged in the indictment is sufficiently set forth. The facts are few. It is alleged, in the first place, that the accused falsely and fraudulently wrote, addressed, and caused to be sent to J. K. Paulding the letter therein stated. In the next place, that he fraudulently and without authority caused and procured a requisition to be issued, for the money therein stated. And, finally, that he fraudulently drew upon Mr. Paul-ding for the money, and received and applied it to his own use; and that all this was done to defraud the United States.
As to the first of these allegations, nothing can be added to it. The accused wrote and sent it; and that is all, perhaps, that can be proved upon him.
The second allegation is, that he caused the requisition to be issued fraudulently, and without authority; and it presents the important question, whether, if an officer of the government shall fraudulently cause a requisition to be issued, without authority, upon the public treasury, and contrive to get and apply the money to his own use, he would be indictable at common law. In deciding this question, it would seem to be unnecessary to bring to our assistance the previous letter and the subsequent draft. The question might be rested upon the requisition itself; and upon that ground, and that alone, he should hold any man, who should practise such a fraud, indictable at common law. '
It is not necessary that the accused should have made any false affirmation to any one respecting the fraud charged.
The case in Maulé & Selwyn was correctly decided; but it was a ease of private fraud, and the indictment was under the statute, and required allegation of false pretences ; and therefore *474is not applicable to this case, which is for a fraud upon the public at common law, and does not require false pretences.
Mr. Goxe, for the defendant. All these indictments appear to be based on one erroneous fundamental principle.
The true principle, which pervades the whole criminal law, is, that every indictment must contain specific averments of the facts which constitute the crime imputed, in order that the parties accused may be prepared to meet it.
The facts stated in the indictment are not, per se, criminal; and the addition of the adverbs “ fraudulently ” and “ falsely ” cannot supply the want of the averment of those facts, which make the facts stated in the indictment criminal. The manner in which the fraud was effected must be stated. Rex v. Mason, 2 T. R. 581; Rex v. Holland, 5 T. R. 581; Rex v. Munoz, 2 Str. 1127.
The averment that these things were done without authority, and with intent to defraud the United States, is not sufficient. The manner of the offence must be charged. 2 Hale, 184. If the averment of false pretences be stricken out, as surplusage, there is no fact alleged which shows that the acts done were criminal.
Mr. Tones, on the same side. There are two reasons for precision in indictments, namely, that the charge should be simple, and reduced to a single point; and that the defendant may know with certainty against what he is to defend himself.
This precision is as necessary in an indictment for a fraud upon the public, as for a fraud upon an individual. Every injury to the revenue, or to the public, is not necessarily a fraud. A direct and open breach of trust in a public officer is not an indictable offence at common law. There must be some deceit. It must be by a practice, or token, which may affect the public. East, P. C. 818. It is the machinery of the fraud which makes it indictable. Russell, 1308. It must be by means which affect, or may affect the public, and against which common prudence cannot guard.
As great precision is necessary in an indictment at common law as under a statute. The means, the facts that show the fraud, must be set forth; the contrivance, the machinery. Arch-bold, 16,17,18.
If the averments which are said to be mere aggravation be struck out, what is there left 1
The words “ falsely ” and “ fraudulently,” and “ with intent,” &c., will not supply the want of an averment of the facts necessary to show the deceit. “ Without authority.” Whose authority ? — what authority ? “ Ostensibly for the public service.” How ostensibly ? It is no averment of a fact.
It is contended, on the side of the prosecution, that if the *475indictment states enough to constitute an offence, it is immaterial what else is averred; but if you set out what is not material, you must prove it.
Gover’s case does not show that you may indict for false pretences and convict for forgery, upon the same count. You can charge only one distinct offence in one count. Too much is as bad as too little. But this indictment does not contain distinct charges of distinct offences. It purports to charge one offence only, and that is for obtaining money by false pretences.
Mr. Jones cited Arch. Crim. PL 19, 27, 30; Governs case, East, P. C. 824; S. C. in Sayer’s Rep.; Mc Carthy’s case, East, P. C. 823 ; Russell, 1361 -1370.
Mr. Key, as to the definition of forgery at common law, cited East, P. C. 852, 1022; Starlde, Cr. Law, 103; United States v. Castor, in this Court, at Alexandria.
Ceanoh, C. J., delivered the opinion of the Court, (ThRtjston, J., dissenting.)
This is a third indictment at common law, against the late Fourth Auditor of the Treasury of the United States, for a fraud upon the public, in obtaining the money of the United States by means of false pretences.
It is said to be, in point of law, exactly like the former indictment, founded upon the transaction with Mr. Paulding, except that, instead of averring, at the conclusion of the charge in the indictment, that the fraud was effected by means of the said several “ false pretences,” it avers that it was effected “ by means thereof,” that i's, of all the acts which, in the preceding part of the indictment, had been set forth and averred to have been done by the defendant, “ as false pretences.”
The demurrer upon this indictment not having been submitted to the Court, with that in the former case, has afforded the counsel of the United States an occasion to question the correctness of the principles and of the conclusions which are stated in the opinion of the Court in that case, and has given the Court an opportunity, of which it has availed itself, to review its opinion, under the additional light afforded by the able argument of the learned counsel, directed exactly at the opinion itself. We have been the more willing to do this, because, as there is no appeal in these cases, a heavier responsibility is thrown upon this Court. We shall proceed, therefore, to a consideration of the points in which the correctness of our former opinion has been questioned, with a hope and a confidence that, if in this examination we shall find that we have committed an error, we shall not be prevented, by any pride of opinion, from acknowledging it with candor, and correcting it with pleasure. *476We have taken time to examine the authorities to which we have been referred, with a degree of attention, as we hope,, in some degree commensurate with the importance of this cause in the estimation of the public, and with its real importance in point fif law.
The objection taken, by the counsel of the United States, to the decision of the Court in the former case, is, in substance, that the Court drew a false conclusion from the premises which they had established.
The argument on the part of the United States is, in substance, this >: —■ According to the opinion of the Court, every indictment which sufficiently sets forth a fraud on the public, effected by means other than false pretences, is a good indictment at common law.
This indictment does sufficiently set forth a fraud upon the public, effected by means other than false pretences.
This is, therefore, a good indictment at common law. The conclusion is just if the premises are true.
The major proposition may, for the sake of argument, be admitted to be true.
But the minor proposition, namely, “ That this indictment does sufficiently set forth a fraud upon the public, effected by means other than false pretences,” is now, as it was in effect before, denied by the Court. It was, therefore, incumbent upon the counsel of the United States to prove it before they could arrive at their conclusion.
Have they done so ? and how?
They take it for granted that they have proved the proposition when they show, that it is alleged in the indictment that “ the accused, devising and intending to defraud the United States, wrote and sent the letter of advice set out in the indictment — made the draft-and procured the requisition to be issued” — (and we will add, what they omitted, sold the draft, received the money, and applied it to his own use,) “ and that it is distinctly averred that by these acts he did defraud the United States of the money mentioned in these indictments.”
And the counsel for the United States contend that “ all that can be necessary to set out in the indictment is, that the party accused intended to defraud the United States; that in pursuance of that intent he committed certain specific acts; and that by those acts the -United States were defrauded.”
By the expression “ set out ” the Court understood the counsel of the United States as meaning no more than “ aver ” or “allege;” and the Court, therefore, understood them, in effect, to say, that it is only necessary, in an indictment at common *477law, for a fraud upon the United States, to aver that the defendant did certain acts with intent to defraud the United States, and that by those acts the United States were defrauded; although the same acts, without the averment of a criminal intent, should appear to be innocent.
The proposition to be proved is, “ that this indictment does sufficiently set forth a fraud upon the public, effected by means other than false pretences.”
It must sufficiently set forth a fraud.
Fraud is an inference of law from certain facts. A fraud, therefore, is not sufficiently set forth in an indictment, unless all the facts are averred which in law constitute the fraud. Whether an act be done fraudulently or not is a question of law, so far as the moral character of the act is involved. To aver that an act is fraudulently done, is, therefore, so far as the guilt or innocence of the act is concerned, to aver a matter of law, and not a matter of fact. An averment that the act was done with intent to commit a fraud, is equivalent to an averment that vthe act was done fraudulently. No epithets, no averment of fraudulent intent, can supply the place of an averment of the fact or facts from which the legal inference of fraud is to be drawn. Starkie, in his late treatise on criminal pleading, in p. 163, says: “ Whether particular circumstances constitute an indictable fraud, is a question of law; and, therefore, according to a fundamental rule of description in indictments, such circumstances must be set out, in order to show that the facts amount to an indictable offence.”
The case of The King v. Knight, 1 Salk. 375, was an information against a receiver-general for falsely indorsing certain exchequer bills, and paying them into the exchequer “ as if they had been received for customs, and as if they had been truly indorsed ; to the deceit and fraud of the king.”
The statute of 8 and 9. W. 3, c. 20, § 65, required him “ to put his name to the bill.” The information only charged that he indorsed it. Lord Chief Justice Holt, in delivering the opinion' of the court, said, “ The word indorse is not sufficient; for in-dor savil imports a writing on the back of a thing, but not putting his name upon it. But it was urged by the king’s counsel that it might plainly be understood by the words quasi receptee essentpro custumiis. I answer this by argument only; and inform-ations are nought for that very cause; for all charges ought certainly to be set out in pleading. But further it was urged that it is said, falso indorsavit in deceptionem domini regis, and so found by the jury; and, though a fact that appears innocent cannot be made a crime by adverbs of aggravation, as falso, *478fraudulenter, &c., yet where a fact stands indifferent, as writing, which may be trae or false, and is charged to be falso, and the jury find it so, all are then estopped to say the contrary. On the other side it was said, in deceptionem is only matter of conclusion. But here is no charge; it is not enough to say the king is cheated; he must appear to be so.” Again, in the same case, as reported in 3 Salk. 186, it is said, “ To say, falso indorsavit quasi receptee essent, is no direct charge of any thing that is criminal. ’T is true it is said in deceptionem dornini regis; but this is only matter of inference and conclusion; whereas the charges contained in every indictment ought to be so certain that the defendant may know what answer to make, and that the court may set the fine in proportion to the offence; and likewise, that if the defendant should be indicted again for the same fact, he may plead autrefois convict, (that is, that he has been before convicted.) ’T is time that the jury have found that the defendant falso mdorsavit; but that will not fix the guilt; for they are only to find the contents of the indictment, and if that will not amount .to a crime, the adverb falso will not make it so.”
So also Lord Mansfield, in Rex v. Woodfall, 5 Burr. 2666, says, “ that all the epithets in the information were formal inferences of law from the printing and publishing,” and “ that the verdict finds only what the law infers from the fact.” Again, in p. 2669 he says, “ if they ” (the jury) “ meant to say that they did not find it a libel, or did not find the epithets, or did not find any malicious intent, it would not affect the verdict, because none of those things were to be proved or found either way.”
The language of Starkie, also, (Grim. PL 85,) is this: “ It has been said, that where the fact laid in the indictment appears to be unlawful, it is unnecessary to allege it to have been unlawfully done. In truth the averment is in no case essential, unless it be part of the description of the offence as defined in some statute; for if the fact, as stated, be illegal, it would be superfluous to allege it to be unlawful; if the fact stated be legal, the word illicite cannot render it indictable ; and the same observation is applicable'to the terms wrongfully, unjustly, wickedly, wilfully, corruptly, to the evil example, maliciously, and such like; which are unnecesshry if they are not to be found in the very definition of the offence, either at common law, or in the purview of the statute.”
' So also Archbold, in his treatise on criminal pleadings, p. 23, says, “ An indictment for an offence against. the statute must, with certainty and precision, charge the defendant to have committed the acts, under the -circumstances, and with the intent mentioned in the statute; and if any one of these ingredients in *479the offence be omitted, the defendant may demur, move in arrest of judgment, or bring a writ of error. The defect will not- be aided by verdict, nor will the conclusion, contra formam statuti, cure it.”
One of the necessary and essential ingredients of fraud is deceit. Without deceit there can be no fraud, in the legal sense of the word. No fraud can be committed but by deceitful practices ; practices calculated to deceive. There may be injuries to the public without deceit, and they may be indictable at common law, but they cannot be frauds. The particular deceitful practices, by means of which the fraud is alleged to have been committed, must be specially set forth; so that the deceit may appear upon the face of the indictment, in order that the Court may judge whether the fraud which constitutes the crime can-be inferred from the facts stated in the indictment. Whether the deceitful practices consist of false tokens, or fabricated letters, or forged notes, or false pretences, expressed either by words or signs or acts, they must be set forth with proper averments, showing and falsifying the pretended facts which were the means of the deceit.
If, then, the law is, as we have stated it to be, that fraud is an inference of law from certain facts; that every indictment for fraud is bad which does not positively aver all the facts necessary to raise that inference of law; that the expressions “ fraudulently and with intent to defraud the United States,” and “ that the United States were defrauded,” are not averments of matters of fact, but of inferences of law; there will be nothing left, according to the idea of the counsel of the United States, as to what is necessary in an indictment for fraud upon the United States, but the averment that certain apparently innocent acts were done by the defendant.
Let us, then, according to the terms of the proposition, exclude from this indictment all the averments respecting false pretences; and let us exclude those allegations which are not averments of matters of fact, but of inferences of law; and the following averments of facts will be all that are left, namely: That Tobias Watkins, on the 8th of October, 1827, being then 4th Auditor, &c. at Washington county aforesaid, with force and arms, wrote and addressed' and caused to be sent to J. K. Paulding, then a navy agent of the United States at the city of New York, the letter of that date set forth in the indictment; and on the same day drew the draft on the said J. K. Paulding, navy agent, for fj300, and sold and delivered it to C. S. Fowler, and received from him $300 therefor, and kept and disposed of the same for his own use; which draft was afterwards paid by the said J. K. Paulding. That the said T. Watkins did after-*480wards, on the 6th of November, 1827, at Washington county-aforesaid, cause and procure to be issued from the Navy Department of the United States, the requisition set forth in the indictment, for the purpose of placing in the hands of J. K. Paulding, navy agent as aforesaid, the sum of $300 of the moneys of the United States, which was by that means done. And that these things were so done by the said Tobias Watkins, not for or on account of the public service, but for the private gain and benefit of the said Tobias Watkins, and to enable him to obtain and keep, to his own use and benefit, the said sum of three hundred dollars; and that, by means thereof, the said To-bias Watkins did, at the time and times aforesaid, dispose of the same to his own use and benefit.
These are all the facts remaining in the indictment, upon which the Courtis called upon to decide whether the indictment is good, as an indictment at common law, for a fraud upon the United States.
We look in vain among these facts, for such as show that deceit which is an essential ingredient in fraud.
There is no fact averred in relation to the letter, or the draft, or the requisition, which shows any deceitful practice, any attempt to deceive anybody, or to impose upon any agent of the government. Upon that most essential point the facts give us no information. Fraud, even in civil cases, is never to be presumed; and in criminal cases the accused is always presumed to be innocent until the contrary appears.
But it has been suggested that the letter, the draft, the requisition, and the receipt and application of the money to his own use, by the defendant, he then being 4th Auditor of the Treasury Department of the United States, do, of themselves, show a fraud.
They might, indeed, be evidence contributing to establish a charge of fraud, upon the trial before the jury; but the Court is not now to inquire what might be the evidence of fraud. The question is, what are the allegations, not what is the proof; for, however strong the proof might be, the Court could not give judgment against the accused, if the offence should not be sufficiently alleged. The simple averment that the defendant wrote the letter is not the averment ’of any fact which might be inferred from the fact of his writing the letter. So in regard to the averments respecting the draft and the requisition, and the receipt and misapplication of the money; they do not amount to an averment of any inference which might be drawn from either of those acts, or from the combination of the whole. Whatever material inferences of fact might, in the opinion of the *481counsel for the United States, be drawn from those facts, ought to have been averred as facts; and without such an averment those inferences cannot be taken into consideration by the Court in deciding upon the validity of the indictment, for the same reason which would exclude them in the case of a special verdict.
Excluding, therefore, those averments of false pretences, which, by the terms of the proposition, are to be excluded, and those averments which are only averments of inferences of law, and there remains no averment of fact showing that most important of all ingredients of fraud, the deceitful practice by which the fraud was or could be effected. The counsel for the United States, therefore, having failed to support the minor proposition of the syllogism upon which their argument is founded, must, of course, fail in their conclusion.
A great part of the argument of the counsel for the United States, in the present case, was founded upon a misapprehension of the opinion of the Court upon the former case. They, in effect, assumed, as one of the grounds of their argument, this proposition: that the Court decided the former indictments to be bad, because they were insufficient as indictments for fraud by false pretences, although they contained sufficient averments to make them good as indictments for fraud upon the United States without false pretences. But no such proposition was stated by the Court in its opinion. No opinion upon that point was given by the Court. On the contrary, the Court said : “ It cannot escape our notice, that the only injury to the United States, complained of in this indictment, is by fraud committed by false pretences.” And again, “ 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.”
If, indeed, the Court had seen, that, independent of the aver-ments respecting false pretences, there were, in the indictments, other sufficient averments of facts showing other deceitful practices by which the fraud was committed, the question might have occurred which is now made, to wit, whether the indictments might not be good notwithstanding the allegation that the fraud was committed by means of certain false pretences imperfectly set out. The Court, however, did not see, in the indictments, any allegations of other facts showing other deceitful practices by means of which the fraud (in the language of Starkie, in the passage cited by the counsel for the United States in p. 103,104,) “ could have been effected.” That passage was cited to show that it is not necessary to be very particular in setting forth the means by which the fraud was committed-
*482After saying, as' before noticed, that, whether particular circumstances constitute an indictable fraud, is a question of law, and therefore must be set out, in order to show that the facts amount to an indictable offence, Mr. Starkie observes, in regard to the question, how far it may be necessary to particularize in describing the means of effecting the fraud, “ that if some means be specified, and by those the fraud could have been effected, no. objection can be taken on the ground that the description is not sufficiently circumstantial. The case from which alone he seems to have drawn this conclusion, was that of Young et al. v. The King, 3 T. R. 98.
The fraud, in that case, was effected by means of a false pre-tence, respecting a certain bet which the defendant had made “ with a colonel in the army, then in Bath.”
Upon a writ of error, one of the errors alleged was, that the name of the colonel was not stated in the indictment. But the objection was overruled by the Court, who said, that “ perhaps his name was not mentioned, so that he could not have been described in the indictment with greater accuracy.”
The general principle thus extracted by Mr. Starkie from this lean case of Young et al. v. The King, is cited to justify the Court in saying, that it is only necessary, in an indictment at common law for fraud against the United States, to state that the defendant did certain acts (whether fraudulent in their nature or not) with an intent to defraud the United States, and that they were defrauded thereby.
It is evident, however, that Mr. Starkie intended to say, in effect, that the means specified must be means by which it might be apparent to the Court that a fraud could be committed ; that is, deceptive means, deceitful practices; for without deceit, or the use of deceptive practices, fraud cannot be committed.
The Court, therefore, not having perceived in the former indictments any facts alleged, (except the false pretences, which are now admitted to have been imperfectly set out,) which showed any deceptive means or deceitful practices by which a fraud upon the United States could be effected, had no occasion to advance the doctrine which the counsel for the United States have supposed was advanced by the Court, nor to deny the principle contended for on the part of the prosecution, that “ utile per inutile non vitiatur.”
Whenever the circumstances of a case shall raise the question, whether an indictment for fraud alleged to have been committed by false pretences imperfectly set out, can be supported by evidence of other deceitful practices which may happen to have *483been set out in the indictment, but not averred to be the means by which the alleged fraud was committed, it will be proper to decide it; and the cases cited by the counsel will deserve great consideration ; but as we think that that question is not raised by the circumstances of the present case, it is not necessary to decide it now.
It has been stated in argument, by the counsel for the prosecution, that it has been settled by the opinion of this Court upon the former indictments, “ that defrauding the United States was indictable at common law without the use of false pre-tences.”
The proposition thus extracted, and drawn away from the ideas by which it was accompanied in the opinion which was given, and presented to the view thus baldly, appears to have misled the counsel for the United States, and may tend to mislead others. If the expression, “false pretences,” be taken in its most extensive sense, it might, at first view, be doubted whether a fraud could be committed without a false pretence, for falsehood and deceit are the essence of fraud. But the phrase, “ false pre-tences,” has become familiar to the lawyer’s ear ; and ever since the statute of 30 Geo. 2, c. 24, which made certain frauds upon individuals indictable which were not indictable by the common law, the phrase has acquired a technical character, and has generally been understood as descriptive of such false pretences as were punishable by that statute, and as would make those frauds indictable which were not so before.
It is evident, by the manner in which it was used by this Court in its former opinion, that it was so understood by the Court, and was used as a description of a particular class of deceitful practices.
It is evident also, that the Court was considering the question, whether, in an indictment for a direct fraud upon the public, it was necessary that the fraud should appear to have been committed by the same sort bf means which would be required to support an indictment at common law for a fraud upon an individual. Thus, after stating one of the grounds of the demurrer, namely, that fraud is not indictable at common law unless effected by means of some, false token, such as false weights or measures or marks, &c., the Court said: “ 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 precedent.” Again, the Court said: *484“ The principle, therefore, which, in transactions between individuals, requires, in order to make the fraud indictable as a public offence, that it should be committed by means of tokens, or of false pretences, or forgery, or conspiracy, does not apply to direct frauds upon the public.” The Court then proceeded to illustrate the distinction in principle, between public and private frauds, by many cases of indictable frauds, in which the deceitful practices by which the frauds upon the public were effected did not consist of false tokens, or false pretences, or forgery, or conspiracy ; and then observed, that “ these cases seem to establish the broad principle stated by Bast, (P. C. 818, 821,) that all frauds affecting the crown, and the public at large, or effected by any deceitful or illegal practice or token (short of felony,) which affects, or may affect the public, are indictable offences at common law.”
These citations from the former opinion of the Court seem to us to show, conclusively, that the Court ought not to be understood as saying, that an indictment at common law for a fraud upon the United States, can be supported without the averment of facts which show that the fraud was committed by deceitful practices of some sort or other; although the Court did, in effect, say that it was unnecessary to show that the fraud was effected by means of tokens, or of false pretences, or forgery, or conspiracy; because there may be deceitful practices not included in either of those classes.
The counsel for the United States' also misunderstood the opinion of the Court, in supposing the Court to have said, that an indictment which sufficiently sets forth a fraud upon the public, unaccompanied by false pretences, and which would be a good indictment without any averment of false pretences, would be wholly vitiated by undertaking to set out such pre-tences, and setting them forth insufficiently. Whatever the opinion of the Court might be in such case, it certainly was not expressed.
Again, it was stated by the counsel for the United States, that, according to the opinion of this Court, the introdution of unnecessary matter into an indictment vitiates the whole indictment. In this respect, also, the opinion of the Court was misunderstood. The Court gave no such opinion.
It was contended on the part of the United States, that the indictment is sufficient, because “ the intent to defraud is plainly charged; the actual perpetration of the fraud as plainly, and the acts by which the fraud was committed, are set forth, the letter, the draft, the requisition;” and it was asked, “are these acts such as could not defraud the United States?”
*485It has been before observed, that the averment of an intent to defraud, will not supply the want of the averment of facts showing the deceitful practice which constitutes the essence of the fraud. It is not the injury alone, but the injury by means of the deceit, which constitutes the crime.
But it is said, that the actual perpetration of the fraud is plainly averred.
The simple averment of fraud, or that the United States were defrauded, is only the averment of a matter of law; a legal inference from facts; which facts must, themselves, appear to justify it.
The acts, by which the fraud was committed, it is said, are also set forth, namely, the letter, the draft, and the requisition. These may be among the acts by which the injury was done to the United States, but they are not such acts as show the deceitful practices by which the fraud was effected. The only facts, averred respecting those papers, are, that the letter was written and sent; the draft was drawn and sold and paid, and the requisition was procured. These facts, alone, do not show the fraud.
Again ; it is contended, on the part of the United States, that, “ whether these acts did defraud the United States as charged in the indictment, is matter of proof' — is exclusively for the jury, and not for the Court.”
Whether the acts were done, is 'certainly a question for the jury. But whether those acts did defraud the United States, namely, whether they amount to fraud, is unquestionably a matter of law. It is true, that in finding a general verdict, upon the general issue, in a criminal case, the jury must incidentally decide upon the law as well as the fact, because the question of guilt depends upon both law and fact, which cannot be separated in a general verdict; yet whenever, by the pleadings, or by a special verdict, which the jury have always a right to find if they will, the law is separated from the fact; the law is to be decided by the Court alone.
As the Court said so much, in its former opinion, respecting the degree of certainty required by the rules of the common law, in indictments, it forbears to add any thing upon that point.
But the propriety of adhering to the rule has been questioned, and the passage from Hale’s History of the Pleas of the Crown, (vol. 2, p. 193,) so often quoted ■ in support of defective indictments, has been again cited upon us. But his complaint of the over-nicety of the practice under the rule, is the strongest evidence of the existence of the rule itself. And the same venerated judge, in another part of his book, in speaking of presumptive *486evidence, (p. 289, 290,) says, “it is better that five guilty persons should escape unpunished, than one innocent person should die; ” and if his opinion had been required, there can be no doubt that his patriotism would have prompted him to say, that it is better that ten guilty persons should escape punishment, than that any one of those rales of the common law which were adopted for the protection of the personal liberty and safety of the subject or citizen, should be abrogated. Those rales of the common law were not imposed upon the people by an impending arbitrary power, but sprang up spontaneously in the midst of them, according to the exigency of the times. They were rights claimed and enforced by the unconquerable spirit of our sturdy ancestors, who to all the attempts made to deprive them of those rights, answered, with stern resolution, Leges Anglim nolvmus mutari. Such of our ancestors as were either driven or allured to this country, claimed the common law as their birthright ; and of all its provisions, they clung with most pertinacity to those upon which the security of their personal liberty depended.
It was upon the principles of the common law that our revolution was based and defended; and when the Colonies assumed the right of self-government, many, if not all of them, expressly declared that the people were entitled to the privileges and the protection of the common law, and this Court would, betray the people if it should give them up. Next in importance to certainty in the law, is certainty in the accusation.
Mr. Starkie, in his treatise on Criminal Pleadings, p. 73, says, “ The general rule has long been established that no person can be indicted, but for some specific act or omission ; or punished, unless such act or omission be charged in apt and technical terms, with precision and certainty on the face of the record. Before this important part of the subject is resolved into its elementary divisions, it may be proper briefly to notice the principal reasons, on the ground of which the law exacts a certain particular description of the offence,- for these, it is evident, supply the true test by which the sufficiency of any particular charge is to be ascertained.
“ It is necessary, then, to specify, on the face of the indictment, the criminal nature and degree of the offence, which are conclusions of law from the facts; and also the particular facts and circumstances which render the defendant guilty of that offence.
“ 1st. In order to identify the charge : lest the grand jury should find a bill for one offence, and the defendant be put upon his trial in chief, for another, without any authority.
“ 2dly. That the defendant’s conviction or acquittal may enure to his subsequent protection, should he be again questioned on *487the same grounds. The offence, therefore, should be defined by such circumstances as will, in such case, enable him to plead a previous conviction or acquittal of the same offence.
“ 3dly. To warrant the court in granting or refusing any particular right or indulgence which the defendant claims as incident to the nature of his case.
“ 4thly. To enable the defendant to prepare for his defence in particular cases, and to plead in all; or if he prefer it, to submit to the court by demurrer, whether the facts alleged (supposing them to be true,) so support the conclusion in law, as to render it necessary for him to make any answer to the charge.
“ 5thly, and finally and chiefly. To enable the court, looking at the record, after conviction, to decide whether the facts charged are sufficient to support a conviction of the particular crime, and to warrant their judgment; and also in some instances, to guide them in the infliction of a proportionate measure of punishment upon the offender.”
Such being the rule of the common law, such its foundation, and such its reasons, this Court thinks'itself, not only warranted, but obliged, to adhere to it, whenever its benefit is claimed.
Upon the whole, the Court, after a very deliberate and anxious revision of its former opinion, has seen no cause to modify it in any respect; and perceiving no material difference, in point of law, between the present and the former indictment, we are of opinion that the judgment, upon this demurrer also, should be rendered in favor of the defendant.