(concurring). I agree with what is said by Judge RINER in the foregoing opinion, but desire to add the following :
The ground most earnestly urged for a reversal of this judgment Is that the indictment is fatally defective because it does not charge '.that the false entry was made in a report “of the association,” as contemplated by section 5209 of the Revised Statutes.
The rules governing criminal pleadings have become less technical and more practical," but no less protective to the accused, since the Supreme Court in a series of cases beginning in the year 1893, notably Dealy v. United States, 152 U. S. 539, 14 Sup. Ct. 680, 38 L. Ed. 545; Evans v. United States, 153 U. S. 584, 14 Sup. Ct. 934, 38 L. Ed. 830; Dunbar v. United States, 156 U. S. 185, 15 Sup. Ct. 325, 39 L. Ed. 390; Cochran & Sayre v. United States, 157 U. S. 286, 15 Sup. Ct. 628, 39 L. Ed. 704; and Rosen v. United States, 161 U. S. 29, 16 Sup. Ct. 434, 480, 40 L. Ed. 606 — has under various circumstances declared that allegations in an indictment are sufficient if their meaning is “clear to the common understanding”; that.“no impracticable standards of particularity should be set up”; that “few indictments under the national banking law are so skillfully drawn as to be beyond the hyper-criticism of astute counsel”; and that “the entire indictment is to be considered in determining whether the offense is fairly stated.” The liberal tendency of the doctrine so announced has been followed by this court in Clement v. United States, 79 C. C. A. 243, 149 Fed. 305, Rinker v. United States, 81 C. C. A. 379, 151 Fed. 755, Stearns v. United States, 82 C. C. A. 48, 152 Fed. 900, and Morris v. United States, 88 C. C. A. 532, 161 Fed. 672.
In the Dunbar Case Mr. Justice Brewer, speaking for the court, >■ affords a practical application of the liberal doctrine taught in the foregoing cases. He allowed an indictment to be helped out by reference to certain specific tariff schedules. The indictment charged the “smuggling of prepared opium.” It appears that the offense denounced by the statute consisted of smuggling “opium prepared for smoking.” He held that by reference to the tariff schedules the words “prepared ■opium” would be seen to be essentially the equivalent of the words “opium prepared for smoking.”
Applying the principles just alluded to, I think we are at liberty to consider the present indictment in the light of the statute which defines the. duty of banking associations. Section 5211 enacts that •“every” (banking) “association shall make to the comptroller of the currency not less than five reports during each year * * *. Each report shall exhibit in detail and under separate heads the resources *393and liabilities of the association at the close of business on any past day. * * * ” What can be plainer to the common understanding than that the reports showing resources and liabilities of the First National Hank on the 6th day of February, A. D. 1903, to the Comptroller of the Currency referred to in the indictment was one which: was being furnished to the Comptroller by the association whose duty it was to do so? The report, according to the language of the indictment, undertook to make a showing of the resources and liabilities of (he bank exactly as required by section 5211. I think, reading the indictment in the light of the law under which it was drawn makes it perfectly clear that the defendant was charged with making a false entry in a report of the association to the Comptroller. The true test as laid down by all the authorities concerning the particularity of averment required in a criminal indictment is that it should contain such a description of the offense charged as will enable tlje defendant to make-his defense and plead such judgment as may be rendered in the case in-, bar of any further prosecution for the same offense. I think the defendant would be considerably surprised if we should gravely hold that, by reason of the omission of the words “of the association” from-the indictment, he was not sufficiently informed of the nature and cause-of the accusation against him within the meaning of the rule just stated.
I am in favor of affirming the judgment.