(dissenting). Section 5209 of the Revised Statutes under which the plaintiff in error was convicted provides that:
“Every president, director, cashier, teller, clerk or agent of any association. * * * who embezzles, abstracts or wilfully misapplies any of the moneys, funds or credits of tlie association; * * « or who makes any false-entry in any book, report or statement of the association, with intent, in either case, * * * to deceive any officer of the association, * * * shall be deemed guilty of a misdemeanor and. shall be imprisoned not loss than live years nor more than ten.”
Section 52Í1 provides that every association shall make to the Comptroller of the Currency not less than five reports in each year verified, by the oath or affirmation of the president or cashier of such association. Section 5209 imposes the same severe penalty for the making of false entries in reports, books, or statements of a national banking association as for the willful embezzlement of its funds, a penalty much more appropriate for the latter than for the former offense. And,, where the offense is the making of false entries, the statute and the pleadings under it should be strictly construed. No one should be-punished for it unless he has been clearly charged with the crime and was placed upon trial for it.
One of the essential ingredients of the offense of which the plaintiff in error was convicted was that the false entry was made in a report, book, or statement of the national banking association described in the indictment. A false entry in a report, book, or statement of any other person or corporation is not an offense under this act of Congress. United States v. Eqe (D. C.) 49 Fed. 852, 853; United *394States v. Potter (C. C.) 56 Fed. 83, 102. It is true that Judge Ami-don, in United States v. Booker (D. C.) 80 Fed. 376, 378, 379, made some remarks that are not in accord with this view. But they are not persuasive, and they are obiter dicta, for the indictment in that case charged both that the bank made the report in which the false entry was alleged to have- been inserted and also that this report was one of the .five reports required by the law. In my opinion the proposition cannot be sustained that the officer, teller, or cashier, óf a national bank is liable to imprisonment for five or ten years under section 5209 fo'r making a false entry in a report, book, or statement of any other person or corporation than a national banking association.
If the indictment had contained an averment, as in Cochran & Sayre v. United States, 157 U. S. 288, 289, 15 Sup. Ct. 628, 629, 39 L. Ed. 704, that the false entry was inserted in a report “made to the Comptroller of the Currency in accordance with the provisions of section 5211 of the Revised Statutes of the United States,” the allegation would undoubtedly have been sufficient to show that the entry was made in a report of the banking association, because reports of none but'the banking association are required by that section. .
The question presented in this case was neither in issue nor decided in Bacon v. United States, 97 Fed. 35, 38, 38 C. C. A. 37, for the indictment in that case contained an averment that the “association, on the twenty-eighth day of Decemher, one thousand eight hundred and ninety-three, then and there made, to the then Comptroller of the Currency of the said United States, a report of the condition of the said association at the close of business on the nineteenth day of December, in the year of our Lord one thousand eight hundred and ninety-three, according to a certain form theretofore prescribed by the Comptroller of- the Currency of the United Statés for the time being; the same being a report which it was there and then, to wit, on said twenty-eighth day of December in the same year, by law the duty of the said association’ to make and transmit to the said Comptroller, to wit, one of the five reports before that time and then required by law to be made in each year by every such association, and being then and there verified by the oath of the said president of the same' association and attested by the signatures of three of the then directors thereof”; and that Bacon made the false entries in that report. Nor was the question decided in United States v. Booker (D. C.) 80 Fed. 376, 377, where the averments in-the indictment were “that the Grand Forks National Bank on that day made to the Comptroller of the Currency a report of the condition of the association at the close of business on the eighteenth day of July one thousand eight hundred and ninety-four, ac-corditig to a form theretofore prescribed by the Comptroller. That the report was one which it was the duty of the association by law to make to the Comptroller, being one of the five reports required by law to be made in each year by every such association. That the report was' verified by the oath of the defendant, Booker, president of said association, and attested by the signatures of three of the directors,” and'that-Booker made the false entries in that report. Nor was it presented o'r decided in United States v. Hughitt (D. C.) 45 Fed. 47, where - the 'averment ha the indictment was that the defendant “did *395knowingly, -wrongfully, and unlawfully make and cause to be made false entries in a report or statement of the First National Bank of Auburn, being a report of the condition of the First National Bank of Auburn at the close of business on the seventh day of December one thousand eight hundred and eiglity-seven, made to the Comptroller of the Currency as required by law to be made to the Comptroller of the Currency.” Indeed, I have been unable to discover any decision of any court to the effect that an indictment under section 5209 which does not contain an averment either that the false entry was made in some report, book, or statement of the banking association, or that it was made in a report to the Comptroller in accordance with the provisions of section 5211, which must necessarily have been a report of the association, was sufficient. This indictment contains neither. Evidence that the plaintiff in error made the false entry in a report of his own, or in a report of any other person or corporation than the First National Bank of Miami, would have established the allegations of the indictment as effectually as testimony that he inserted the false entry in a report of that bank.
In Ledbetter v. United States, 170 U. S. 606, at page 610, 18 Sup. Ct. 774, at page 775, 42 L. Ed. 1162, the Supreme Court said;
“We have no disposition 1o quality what has already been frequently decided by this court, that where the crime is statutory it must be charged with precision and certainty, and every ingredient of which it is composed must be clearly and accurately set forth, and that even in the cases of misdemeanors the indictment must be free from all ambiguity, and leave no doubt in the minds of the accused and the court; of the exact offense intended to be charged. United States v. Cook, 17 Wall. 168, 174. 21 L. Ed. 538; United Stales v. Cruikshank, 92 U. S. 542, 562, 23 L. Ed. 588; United States v. Carll. 105 U. S. 611, 26 L. Ed. 1135; United States v. Simmons, 96 U. S. 300. 24 L. Ed. 819; United States v. Hess, 124 U. S. 483, 8 Sup. Ct. 571, 31 U. Ed. 516; Pettihone v. United States, 148 U. S. 197. 13 Sup. Ct, 542, 37 L. ed. 419; Evans v. United States, 153 U. S. 584, 14 Sup. Ct. 934, 38 L. Ed. 830.”
A false entry in a report of the association was an indispensable element of the offense iti this case. A false entry in the report of another was not an offense under the act of Congress. There was no averment that The entry was made in a report of the association, or that it was made in a report required under section 52LI. Therefore it did not set forth “all the elements necessary to constitute the offense intended to be. punished” (Evans v. United States, 153 U. S. 584, 587, 14 Sup. Ct. 934, 936, 38 L. Ed. 830), nor was the crime “charged with precision and certainty and every ingredient of which it is composed * * * clearly and accurately set forth” (Ledbetter v. United States, 110 U. S. 606, 610, 18 Sup. Ct. 774, 42 L. Ed. 1162), and in my opinion the indictment was insufficient and the judgment below should he reversed (United States v. Britton, 107 U. S. 655, 662, 2 Sup. Ct. 512, 27 L. Ed. 520).