dissented.. He observed that his indifferent state of health, and the distance of his residence from Washington. had, perhaps, abridged his opportunity of. studying the legal points of the case; but he had listened attentively to the ingenious and elaborate argument upon it on the part of the counsel, and also to the opinion. just read, of the majority of the court; and he thought that, though the reasoning of the latter might amount to good abstract law, it did not apply to the case before them. He thought that if so plain a subject could not be understood by argument, it could receive but little light from books. He had not had an opportunity to look at the indictment for more than a few minutes, and he had formed his opinion, which was based upon a conviction that the indictment ought to be sustained. In determining a legal question, there were two extremes which ought equally to be avoided—there were two evils, the Scylla and the Charybdis;—too much refinement and subtlety on the one hand, was as much to be dreaded as too great a laxity on the other. It was, as had been argued, highly proper that an accused party should know with what offence he was charged, in order that he might be en abled to make his defence. A statement of the crime alleged formed the substance of the indictment. And could any one say that the present indictment left the accused unprepared for defence, or unapprised of the charge against him ? He could see no omission. He had read the indictment two or three times, and considered it to be fully sufficient; and as he had dissented from a majority of the court, he thought it better to deliver his opinion now, than to delay the proceedings by taking further time for consideration. He would briefly notice two or three of the points on which the majority of the court thought the indictment not sustainable.
It had been urged, in reference to many of the eases cited, that it was not enough to allege that the king or the public had been cheated; but that it must appear that the cheat had been effected, and by certain means. Well, he asked, did it not appear in the present ease that the United States had been cheated? And was it not set forth that it was by the false • and fraudulent means used? Here the judge read that part of the indictment charging the false and fraudulent means; and continued by asking, was not that a clear averment of falsehood and fraud? Then as to the false papers being written, &c., by him, as fourth auditor, or in his private capacity; in either case, he imagined the offence was punishable. Supposing the same character to run through all the charges, he could not see why the indictment could be considered as not borne out. If the official character of the party run through the indictment, the offence would not only be a fraud, but also a violation of the dignity and duties of his office. If fraud was not sufficiently averred, he really did not know what words could be employed in charging it.
The judge proceeded to review the course adopted by the accused, to obtain possession of the public money. He draws upon Mr. Paulding, not as an individual, but as a public officer,—a navy agent. He directs the-draft to be charged to “arrearages,”—a public fund. He states, also, that on the return of the secretary of the navy to the city, a remittance would be made to cover the draft. All these things showed that the proceed*442ings were to be considered as public, or official. By these deceitful practices he entraps the navy agent, and obtains the public money. The letter further directs the draft to be paid out of any unexpended balance in the navy agent’s hands. Was there no fraud, no deceit in that? It was evident that the accused had no right to the money; was this direction, then, innocent, or was it a deceit? The indictment goes on to state that he drew and received the money, and that he applied it to his own use; was that no malversation? If the entrapping of the navy agent, and the application of the public money to his own private purposes, did not constitute fraud, he did not know what fraud was. The denouement of the drama was shown by the requisition. And there the judge begged to observe, that certainly it was uot his desire to prejudice the defendant’s cause, or to do him injury in any way; he would rather extenuate, as far as his official duty permitted; but he must ask if the averments, as to the requisition, did not show a gross fraud? It was charged that, for his own private gain and emolument, he procured this requisition to be issued, to replace the money he had previously drawn by artifice. And did not the requisition, connected with the other papers, —the letter and the draft,—show a plain and palpable fraud? It was a deceit in going to the secretary of the navy; the deceit, or rathef the fraud, might not appear on the face of any one of the papers, taken by itself; hut considering the papers in connection with ■each other, taking them altogether, the fraud was apparent.
Mr. Coxe, for defendant, contended that if this indictment charged any offence, it was forgery; for what is “falsely and fraudulently altering a paper,” but forgery, if the paper be such as to be a subject of forgery? And yet the grand jury yesterday returned ignoramus to exactly such a bill as this, except that it contained the words “forge and.” To alter, is to forge and counterfeit. Archb. Cr. Pl. 189; 3 Chit. 1022; Ourwood’s Hawk. c. 21, p. 262. But it is not such a paper as can be the subject of forgery at common law. The abstract is only an account of the expenditures of the navy agent, for the quarter ending September 30, 1827. The erasure is only of the words, “T. Watkins’s draft,” in each of the three items; but the head of expenditures, namely, “arrearages prior to 1827,” the dates of the items, and the sums, were left. This erasure could not injure or defraud the United States; and, at common law, there can be no forgery unless it be of a paper, or instrument, by the false making of which some person may be defrauded. Ward’s Case, Ld. Raym. 1466; 1 Curwood’s Hawk. c. 21, pp. 262, 265. Mr. Key. for the United States, contrit, contended that this was a good indictment at common law for forgery. It is not necessary that the words “forge and counterfeit” should be used. They are not technical words necessary in the description of the offence, like the words “feloniously” in felony, “traitorously” in treason, "burglariously” in burglary, and “murdravit” in murder. Forgery, at common .law, is but a misdemeanor, of the same nature with fraud and cheating; and no technical words are necessary in describing it. 4 Bl. Comm. 307; Rex v. Dawson, 1 Strange, 19; Rex v. Stocker, 1 Salk. 371; Id., 5 Mod. 137; Russ. 1411. Those terms of art are only necessary in capital eases. Any writing, to the prejudice of another man’s right, may be the subject of forgery at common law. The intent to defraud is necessary in forgery; and it is sufficient if some person could be defrauded by the alteration of it. The United States could be injured by the erasure, because it prevented the United States from seeing who got this money under the head of arrearages; so that they might follow it into the hands of the person who received it, and to recover it if he received it wrongfully, or misapplied it to his own use. The paper, unaltered, showed the defendant to be the debtor; but the altered paper showed Mr. Harris to be the debtor. Can it be said that the United States could not be injured by this alteration? It is not necessary that the United States should have been actually injured; it is sufficient if they might have been. Archb. Cr. Pl. 191, 194; 3 Chit. 1022.*442The judge went on to repeat his opinon, that, taking into view the official relations of the accused and the navy agent, and the letter and draft; it was manifest that the former drew upon the latter out of the public funds. Did that, then, come up to the doctrine of the court, that the papers themselves were not, on the face of the indictment, sufficient evidence of the fraud charged? Hd thought they were; and he thought that they had clearly shown a deceit ab initio. Then as to the false pretences, by means of which the fraud was alleged to have been effected, if the documents appeared to be deceptive, he did not know why they should not be considered as such pretences. He thought they all appeared sufficient to sustain the indictment; they all imported a deceit, a false practice, a means to defraud the United States. He referred again to the rule illustrated by Chitty, in respect to the position, that it was not enough to charge that the king had been cheated, but to make it appear that such is the case; and reasoned from it that, as fraud is an inference of law from matters of fact, the facts charged in this indictment' were sufficient; and, as they are set out, show sufficiently the deceit on the face of them. Here, then, are not only averments of fraud, but the court are enabled to see and judge of it,. from the writings and documents set forth in the indictment. He again reviewed the documents, and drew the conclusion, that, taken in connection, they showed the false and fraudulent purpose, and the deceitful practices. In private cases, the false pretences must be averred specifically and in full. In cases affecting the public it was not so. All that was necessary was to avoid stating the charge loosely, and in general terms, and to show that deceit had been practised. In was his decided opinion, therefore, founded upon the deepest conviction, that the indictment was good, and ought to be sustained. In conclusion he observed, that, in giving that opinion, he had been actuated solely by what he conceived to be a sense of duty to himself, to the laws, and to the country. He was equally anxious for the preservation of the rights of justice, and for the prevention of any encroachments on the privileges of the citizens. He regretted to dissent from the •views taken by the majority of the court; but the opinion he held, he trusted, had been properly expressed; he was sure it was conscientiously entertained.
The next indictment brought before the court, by demurrer, was against the defendant, for having falsely and fraudulently altered a certain abstract of account, rendered by Mr. Harris, navy agent at Boston, to the defendant, as fourth auditor, by obliterating the words “T. Watkins’s draft,” and “do. do.,” prefixed to three items of the account, charging the United States with three drafts of the defendant, paid by Mr. Harris.
Mr. Jones, in reply. If the question be -doubtful, the circumstance that the counsel for the United States had sent up an indictment containing the words “forge and counterfeit,” which was rejected by the grand .jury, is a matter of fair argument that the counsel of the United States thought those words necessary in an indictment for forgery; or that this indictment was for a different offence. But it does not charge any offence; or, if it does, it is not sufficiently set forth. “Fraudulently altered” would not be sufficient to charge a forgery. “Falsely,” at least, must be added. But the words, “falsely and fraudulently alter,” are not a sufficient substitute for “fabricavit” or “contrafecit.” Certain terms do of themselves import a crime. Precedents are the best evidence of the law. All the forms of indictment for forgery, at common law, adopt the word “forge;” and the reason is, that it is a word which has acquired, by long usage, a technical sense. There is no difference between felony and misdemeanor, as to the necessity of certainty; and the necessity of describing the offence in technical language is not confined to capital cases. Whenever technical terms are a part of the description of the offence, they must be used. If other terms are substituted, by way of periphrasis, they must comprehend every idea contained in the word for which they are substituted. Rex v. Knight, 1 Salk. 375; Dawson’s Case, 1 Strange. 19, is only as to the evidence sufficient to prove a forgery, not as to tile allegations in the indictment. An indictment must be more specific than a special verdict. East, P. C. 862, 985; Com. v. My-call, 2 Mass. 136. This paper is not such as that the alteration of it can be, per se, a forgery. East, P. C. 859; 2 Curwood’s Hawk. 263; Ward’s Case, Ld. Raym. 1466; East, P. C. 864, note b. The alteration was not in a material part. A public document, the alteration of which is, per se, forgery, must be a paper which purports to proceed from public authority, and to import public confidence. East, P. C. 859. If it be not such a paper, the indictment must set forth such circumstances as show how the United States could be defrauded by the alteration. Ward’s Case, Ld. Raym. 1466; Hunter’s Case, 2 Leach, 624; East, P. C. 928, 977; Rex v. Collins, Palmer, 367, 373. Mr. Key, in answer to these cases, cited Rex v. Powell, 1 Leach, 77; Russ. 1440; 4 Bl. Comm. 307.2 The Chief Justice having been taken suddenly ill with a fever was obliged to leave the court, which adjourned to Monday, the 15th, and from that day to Tuesday, the 23d of June, when the Chief Justice resumed his seat upon the bench, and on the 24th the opinion of the court was delivered by THRUS-TON, Circuit Judge, as follows (CRANCH, Chief Judge, dissenting):Various objections have been made to the sufficiency of the indictment in this case. It will not be necessary, however, to notice any other than the first, which' is, that the crime of forgery is not charged with sufficient technical precision.
It has been contended, by the counsel for the United States, that in none of the enumerated instances stated in the books, in which certain technical words are necessary to be used in the indictment, in the description of the particular crime, is forgery to be found as one; and hence the inference has been drawn that in an indictment for forgery, it is not necessary to state that the instrument was forged or counterfeited. The principal case relied on to strengthen this *444position, is Rex v. Dawson, in 1 Strange, 19. But upon a careful examination of tliat case, it will be found that the only question was, on the special finding of the jury, whether the facts so found amounted to forgery; and therefore we think it .not applicable to the question in the present case. We have felt very sincerely disposed duly to weigh and appreciate the able arguments which have been urged in support of the indictment. Upon a careful examination, however, of all the precedents of indictments for forgery at common law, which we have been able to lay our hands on, not one is to be found where the term “forged” or “counterfeited” has not been used, except in the present instance; and there is a circumstance, even in this instance, very worthy of notice; which is, that the learned counsel for the United States, in framing their indictment in a former recent case against this defendant for the same erasures or alterations of the abstract attached to the present indictment, and which, after having been acted on by the grand jury, was returned, “ignoramus,” seemed to think it necessary to use the term, “forged,” .in addition to all the other terms used in this indictment. This opinion is certainly entitled to respect, and may be well added to the number of precedents before alluded to. In the absence, then, of any adjudged case to the contrary, we think there is much reason to say that where such has been the long, universal, and uninterrupted usage, such usage may be considered as having grown into law.
In further support of the necessity of using the technical term, “forged,” or counterfeited, is the case in the Massachusetts Reports (Com. v. Mycall, 2 Mass. 136). That was an indictment for altering a writ, after service, and before the return-day; and the terms used in the indictment, after stating the introductory part, were, “That he” (the accused.) “before the time of trial, did unlawfully erase in and from the said writ the word ‘Essex,’ and did falsely and unlawfully insert in the room and place thereof, the word ‘Worcester,’ thereby falsely and unlawfully changing the same writ from a writ directed to the sheriff of the county of Essex, or either of his deputies, or the constable of Harvard within the said county, to a writ directed to the sheriff of the county of Worcester, or either of his deputies, or the constable of Harvard within the said county, with an intent to injure, oppress, wrong, and defraud the said J. R., against the peace,” &c. On a motion, in arrest of judgment, on the ground that these terms contain no technical description of forgery, the court say: “If the facts stated in the indictment constitute any crime at common law, it is forgery, but there is not the necessary technical precision in the indictment, to support a conviction of forgery, and judgment must be arrested.” Now, what was the term, in that case, which was required to give that indictment legal precision? It seems to us, none other than the word, “forged.” Are not the terms used in the indictment, in that case, as amply descriptive-of the crime of forgery as those used in. this case? We think they are. These considerations are strongly corroborated by the-observations of the able editor of the late-American edition of 4 Comyn, Dig. tit. “Indictment” (G. 6), p. 688, note y.3.
We are, therefore, brought to this conclusion; that there is a want of technical precision in the indictment, in the ease before us, and as it is admitted that it cannot be sustained as an indictment of fraud at common law, the majority of the court are of *445opinion that the judgment on the demurrer must be for the defendant. See, also, in support of the opinion of the court, Burridge’s Case, 3 P. Wins. 484, and Cooper’s Case, 2 Strange, 1246.
Speaking of technical terms, or words of art, he says: “Though for many of those terms, sufficient reason can be given, others, there arer which may not be so readily traced to their original, unless we consider them as invented by the lawyers of old, to confine the conduct of a cause to themselves; or as the offspring-of chance, made sacred by time and habit: or ascribe them to a zeal for that system and method which ennoble even the meanest art* and give the air of science and wisdom. But from whatever source they spring, it seems proper to preserve them, to avoid, as well the possibility of error, as the disputes that may arise cm every innovation. And. however untenable upon principles of reason, it is sufficient that they are warranted by precedent; for it was observed, long ago, by Mr. Justice Stanford, upon the question whether any averment by the term licet was sufficient, ‘if it was the usual form to allege it by licet, then I would hold with it.’ And after instancing certain cases in which the omnipotence of custom over reason was conspicuous, he concludes: ‘Wherefore, we ought to adhere to the usual form;but in this case it was not the usual form to> allege the election under the word licet, as you may see in the book of entries; wherefore* since the prosecutor was not tied down to any usual form, but was at liberty to take such words as were proper for the matter, and has not done so, we ought not to hold with the words more than will warrant.’ And again, upon another occasion, though at the first, an avowry was held bad for want of being averred, yet afterwards, says the reporter, the pro-thonotaries searched their precedents, and told' the justices that the common usage was to make the avowry without averment: with which the justices were satisfied. Mr. Starkie, in his Criminal Pleading (pages 69, 70), has the following judicious observations: ’The law distributes crime into three great classes; treason, felonies, and misdemeanors inferior to felony. Each of these is attended with peculiar incidents, both before and after conviction. It is* therefore, one important office of an indictment to specify, in technical language, the particular genus of crime imputed to the defendant, that he may avail himself of those- advantages which the law allows him; that he may be excluded from those which the law withholds; and that the court may be authorized, after - conviction, to inflict the appropriate punishment.’ A strict adherence to such language may, in some cases, appear too nice and critical, to serve the ends of justice; yet it seems founded upon strong and substantial reasons. For instance, by successive decisions, the legal value and weight of a term or phrase, of art, is ascertained, and should a doubt arise as to its meaning, reference, for the purpose of removing it, may be had to former authorities, whilst every new expression would introduce fresh uncertainty, and the benefit to be derived! from precedent, would be wholly lost.”