(dissenting). All there is of the charge in the indictment, when it is stripped of its immaterial verbiage, is that the defendants being engaged in the business of a manufacturer *50of colored oleomargarine attempted at No. 3536 Morgan street, St. Louis, at a date specified, to defraud the United States out of 10 cents a pound on 120 pounds of colored oleomargarine produced by them. This 10 cents a pound could never become due to the United States on this 120 pounds, and hence the United States could never be defrauded of it by the defendants unless without paying that tax they sold this oleomargarine or removed it for use. 24 Stat. 209, § 8, 2 U. S. Comp. Stat. 2231. The manufacture of colored oleomargarine, either by producing- it or by mixing artificial coloring matter with white oleomargarine, could never subject them to liability to pay that tax. This manufacturing might lawfully be done by paying the $600 occupation tax without incurring any liability whatever to pay the poundage tax. Therefore the manufacturing of colored oleomargarine was consistent with innocence of all attempt to defraud the government out of the poundage tax. And no offense is proved or charged by evidence or averment of facts that can be reconciled with the. theory of the innocence of the accused unless the charge and the evidence are such as to exclude every reasonable hypothesis but that of guilt. Vernon v. United States, 146 Fed. 121, 123, 76 C. C. A. 547, 549; People v. Bennett, 49 N. Y. 144; United States v. Babcock, 3 Dill. 581, Fed. Cas. No. 14,487; United States v. Hart (D. C.) 78 Fed. 868, 873, affirmed in Hart v. United States, 84 Fed. 799, 28 C. C. A. 612; United States v. McKenzie (D. C.) 35 Fed. 826; People v. Ward, 105 Cal. 335, 38 Pac. 945; Asbach v. Chicago, etc., Ry. Co., 74 Iowa, 248, 37 N. W. 182; Smith v. First National Bank, 99 Mass. 605, 97 Am. Dec. 59.
Read in the light of the act of Congress and of this rule of law, all the facts set forth in the third count of this indictment are consistent with the innocence of the defendants except the bare averment that at the time and place named they attempted to defraud the United States of a poundage tax of 10 cents a pound on 120 pounds of oleomargarine. An averment in a complaint in a civil action that at a certain time and place the defendant defrauded the plaintiff out of $12 that was due him on a specified account, without stating the facts which constituted the defrauding so that the court could determine from the complaint whether or not those facts constituted a fraud, would be clearly insufficient. An attempt to defraud may be made in a thousand ways. Three ways in which the attempt charged in this case might have been made are by selling the colored oleomargarine, by removing it for consumption, and by removing it for use without first paying the tax. Acts which constituted the attempt, means by which the attempt was made, were indispensable ingredients of the attempt, and until they were disclosed by the pleading it seems to me that no facts were set forth from which, the court could determine whether or not the facts which the pleader by its silence concealed when it presented the indictment, and which it subsequently attempted to prove, were sufficient to support a conviction, none which advised the defendants of the charge they were to meet and gave them a fair opportunity to defend. Armour Packing Co. v. United States, 153 Fed. 1, 17, 82 C. C. A. 135, 151, 14 L. R. A. (N. S.) 400. The reason why the decision and opinion in the Armour *51Packing Company’s Case that it was not necessary to plead the device by which the offense of rebating there charged was committed, does not in my opinion sustain the conclusion that it is unnecessary to jilead the facts which constituted the attempt to defraud in this case, is, that the device was neither the offense charged nor an essential element of the offense charged in that case, while the attempt to defraud is the offense itself in this case, and hence the facts which constitute it are inseparable elements thereof. In the Armour Case this court said;
“Tlie substance of this offense is not tlie device, but tlie solicitation or receipt of tlie concession and the transportation effected thereby. * * * The device whereby the receipt and transportation are obtained is not an essential element of the crime, and It is unnecessary to plead it in the indictment.”
On the other hand, if the device had been the offense, or had been an essential dement thereof, it would, in my opinion, have been necessary to jilead it in that case. But the offense in that case was the rebating, and the indictment was sustained because, and only because, every essential element, all the facts which constituted that crime, "the names of the carriers that transported the property, the date and jilace of the delivery of the goods to the initial carrier and of the reccijit of the concession by the shipper, a description of the sjiecific articles shijiped, the filed and jiublished rate, the less rate at which the goods were transported, and the amount of the concession, the jilace of shipment, and the point of destination of the property and the route over which it was transported,” were clearly and at large set forth in the indictment. The offense in this case is the attemjit to defraud, and by the same mark it was indisjiensable to jilead all its essential elements, -all the ultimate facts, though undoubtedly not their details, which constituted the offense. By a pleading of those facts, and by such a pleading only, could the indictment be brought within the established rule that “it must portray the facts which the pleader claims constitute the alleged transgression so distinctly as to advise the accused of the charge which he has to meet and to give him a fair ojiportunity to jirejiare his defense, so particularly as to enable him to avail himself of a conviction or an acquittal in defense of another prosecution for thé same offense, and so clearly that the court may be able to determine whether or not the facts there stated are sufficient to sujtport a conviction.” Armour Packing Co. v. United States, 153 Fed. 1, 17, 82 C. C. A. 135, 151, 14 L R. A. (U. S.) 400. In Ledbetter v. United States, 170 U. S. 606, at page 609, 18 Sup. Ct. 774, at page 775 (42 L. Ed. 1162), the Supreme Court said:
“We have no disposition to qualify what lias 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 U. Ed. 538; United States 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, 06 U. S. *52360. 24 L. Ed. 819; United States v. Hess, 124 U. S. 483, 8 Sup. Ct. 571, 31 L. Ed. 516; Pettibone v. United States, 148 U. S. 197, 13 Sup. Ct. 542, 37 L. Ed. 419; Evans v. United States, 153 U. S. 5S4, 14 Sup. Ct. 934, 38 L. Ed. 830.”
The following declarations of the law upon this subject are extracted from the opinions of the Supreme Court in the cases which are cited and reaffirmed in the Ledbetter Case.
“No essential element of the crime can be omitted without destroying the whole pleading. The omission cannot be supplied by intendment or implication, and the charge must be made directly and not inferentially, or by way of recital. * * * The doctrine invoked by the Solicitor General that it is sufficient in. an indictment upon a statute to set forth the offense in the words of the statute does not meet the difficulty here. Undoubtedly the language of the statute may be used in the general description of an offense, but it must be accompanied with such a statement of the facts and circumstances as will inform the accused of the specific offense coming under the 'general description with which he is charged.” United States v. Hess, 124 U. S. 483, 487, 8 Sup. Ct. 571, 573, 31 L. Ed. 516.
“A rule of criminal pleading, which at one time obtained in some of the circuits, and perhaps received a qualified sanction from this court in United States v. Mills, 7 Pet. 138, 8 L. Ed. 636, that an indictment for a. statutory misdemeanor is sufficient if the offense be charged in the words of the statute, must, under more recent decisions, be limited to eases where the words of the statute themselves, as was said by this court in United States v. Carll, 105 U. S. 611, 612, 26 L. Ed. 1135, ‘fully, directly and expressly, without any uncertainty or ambiguity, set forth all the elements necessary to constitute the offense intended to be punished.’ The crime must be charged with precision and certainty, and every ingredient of which it is composed must be accurately and clearly alleged.” United States v. Cook, 17 Wall. 168, 174, 21 L. Ed. 538; United States v. Cruikshank, 92 U. S. 542, 558, 23 L. Ed. 588.
“It is an elementary principle of criminal pleading that, where the definition of an offense, whether it be at common law or by statute, ‘includes generic terms, it is not sufficient that the indictment shall charge the offense in the same generic terms as in the definition, but it must state the species— it must descend to particulars.’ 1 Arch. Cr. Pr. & PI. 291. The object of the indictment is: First, to furnish the accused with such a description of the charge against him as will enable him -to make his defense, and avail himself of his conviction or acquittal for protection against a further prosecution for the same cause; and, second, to‘inform the court of the facts alleged, so that it may decide whether they are sufficient in law to support a conviction, if one should be had. For this, facts are to be stated, not conclusions of law alone. A crime is made up of acts and intent; and these must be set forth in the indictment with reasonable particularity of time, place and circumstances.” United States v. Cruikshank, 92 U. S. 542, 558, 23 L. Ed. 5SS.
Because “attempt to defraud” is a generic t'erm, because such an attempt is a conclusion of law made up of acts and intent, and because the facts which are claimed to constitute it must be set forth in the indictment with such reasonable particularity as will enable the court to decide whether they are sufficient in law to support a conviction, as will enable the defendants to prepare their defense and as will protect them from a second prosecution therefor, and the third count in this indictment in my opinion utterly fails to set forth those facts, or the essential elements which constitute the attempt to defraud, I am unable to concur in the view of the majority that this count was not demurrable. It does not seem to me to set forth facts constituting the generic crime alleged.
Nor have I been able to find in the record in this case any substantial evidence that either of the defendants attempted to defraud the *53United States out of the $12 poundage tax on the 120 pounds of oleomargarine. There is evidence tending to show that they were manufacturing colored oleomargarine by mixing colored matter with white oleomargarine. But they could lawfully do that without defrauding or attempting to defraud the government out of the poundage tax. Even an intent at some future time to defraud is neither the fraud itself nor the attempt to defraud. The fraud could not be perpetrated in this case without either selling the 120 pounds, or removing it for consumption, or removing it for use, without paying the tax, and there is no evidence that either of these defendants attempted to do either of these things. The conclusion that they made such an attempt is a mere deduction from the proof that they were manufacturing colored oleomargarine — a deduction that it seems to me could not have been lawfully drawn by the jury for the purpose of convicting these defendants of a crime, because none of the acts proved against them was inconsistent with their innocence of an attempt to defraud the government of this poundage tax. And circumstantial evidence is insufficient to warrant a conviction in a criminal case unless it cannot be reconciled with the theory of innocence and it is such as to exclude every reasonable hypothesis but that of guilt of the offense charged. Vernon v. United States, 146 Fed. 121, 123, 76 C. C. A. 547, 549.