2609. Gaming.- Under an act prescribing a punishment for keeping a room to be used or occupied for gambling, the information need not set forth the names of the persons engaged at play in the house complained of. Chase v. The People,* 2 Colo. T'y, 509.

§ 2610. Under a statute punishing the offense "of keeping a faro-bank or other common gaming table," an indictment which charges the keeping of "a gaming table called a farobank" is insufficient. It should charge the keeping of a common gaming table, or it should charge the keeping of a faro-bank. United States v. Cooley, 4 Cr. C. C., 707; United States 2. Milburn, 4 Cr. C. C., 719.

§ 2611. Under an act punishing the offense "of keeping a faro-bank, or other common gaming table," and the offense " of keeping a faro-bank or gaming table," an indictment for keeping “a faro-bank ” is bad, likewise an indictment for keeping "a certain public gaming table called a faro-bank," and likewise an indictment for keeping "a gaming table." United States v. Ringgold, 5 Cr. C. C., 378; United States v. Milburn, 5 Cr. C. C., 390.

2612. Homicide - Common law form.- An indictment for murder in the common law form, charging the act to have been done "wilfully, feloniously, and with malice aforethought," is sufficient, under a statute defining the crime as “perpetrated without authority of law, and with a premeditated design to effect the death of the person killed or of any other human being." The indictment in such a case need not follow the words of the act. Territory v. Bannigan,* 1 Dak. T'y, 451.

§ 2614.

§ 2613. Under a statute which divides the offense, which at common law was murder in the first degree, into two separate and distinct grades,- murder in the first and second degrees, an indictment which is good at common law for murder in the first degree is sufficient. The offense need not be charged to have been committed under the specific circumstances named in the statute, and in the terms used in the statute. Leschi v. Washington Territory,* 1 Wash. Ty, 13. conviction of lower degree.- Under section 1035, Revised Statutes, providing that "in all criminal causes the defendant may be found guilty of any offense, the commission of which is necessarily included in that with which he is charged in the indictment,” one indicted for murder under section 5339 of the Revised Statutes may be found guilty of manslaughter under section 5341, when the allegations in the indictment, leaving out the allegations as to malice, constitute the offense of manslaughter, and when the acts charged, if proved to have been done unlawfully and wilfully and with malice, constitute murder within the former section, but if proved to have been done unlawfully and wilfully, without malice, constitute manslaughter within the latter section. United States v. Leonard,* 18 Blatch., 187. $ 2615. certainty. In an indictment for murder the utmost precision and definiteness of allegation is necessary. United States v. Scott, 4 Biss., 29 ( 2222-27).

$ 2616. "in the fury of his mind."- An indictment for manslaughter need not aver that the act was done by the prisoner "in the fury of his mind." United States v. Frye, 4 Cr. C. C., 539.

§ 2617. describing wound.- An indictment for murder on the high seas need not state the length and depth of the wound. United States v. Maunier,* 1 Hughes, 412.

§ 2618. aiding and abetting.- Every person present at a murder, willingly aiding or abetting its perpetration, is guilty of murder, and may be indicted and convicted as principal in the first degree. So an indictment is good which charges the accused with murder by being present and doing acts aiding and abetting its perpetration. United States v. Douglass,* 2 Blatch., 207.

§ 2619. Larceny. In an indictment for stealing a check it is not necessary to set out the check in hæc verba, but it is suflicient if set out according to its legal effect. United States v. Wilson,* 1 Cr. C. C., 104.

§ 2620. An indictment for stealing "sundry pieces of silver coin of the value of twentyfive dollars, of the goods and chattels of," etc., is too vague. United States v. Kurtz, 4 Cr. C. C., 674.

§ 2621. Where a statute makes it a felony to steal the notes of any bank established by a charter from the United States, or some individual state, the indictment must state to what particular bank the note belonged, and by what authority it was chartered. United States 2. Porte,* 1 Cr. C. C., 369.

§ 2622. "One silver coin of the value of fifty cents, of the goods and chattels of," etc., is a sufficient description of the property stolen. United States v. Rigsby,* 2 Cr. C. C., 364. § 2623. An indictment is not good which describes the goods as belonging to A. B., deceased, United States v. Mason, * 2 Cr. C. C., 410.

§ 2624. Where two are indicted separately for the same theft, and one is convicted, it is necessary, on the trial of the other, to prove that it was a joint theft, and that both were present at the act of taking the goods; but it is not necessary to charge in the indictment that the theft was joint. United States v. Holland,* 3 Cr. C. C., 254.

§ 2625. An indictment for stealing the goods of the wife from her milliner's shop should allege that the goods belonged to the husband. United States v. Murphy,* 4 Cr. C. C., 681. § 2626. Under the penitentiary act of March 2, 1831, which enacts " that every person convicted of feloniously stealing, taking and carrying away any goods or chattels, or other personal property of the value of $5 or upwards, or any bank-note or promissory note, or any other instrument for the payment or delivery of money, or other valuable thing, to the amount of $5 or upwards, shall be sentenced to suffer punishment and labor," the amount as well as the value of the note must be averred in the indictment. But the description "one hundred silver coins of the value of $75," is sufficiently certain. United States v. Barry, 4 Cr. C. C., 606.

§ 2627. Under the penitentiary act of March 2, 1831, punishing "every person convicted of feloniously stealing, taking and carrying away any bank-note, promissory note or other instrument of writing, for the payment of money," an averment that the note stolen was a note of the Union Bank of Georgetown, to the amount of $10, of the value of $10, is sufficient. It is not necessary to allege it to be a bank-note for the payment of money to the amount of $10. United States v. McDaniel, 4 Cr. C. C., 721.

§ 2628. National banks.- Under section 5209 of the Revised Statutes, which makes it an offense for any cashier of a national bank to make any false entry in any report or statement of the association with intent to defraud the association, or to deceive any officer of the association, or agent appointed to examine the affairs of such association, the counts in an indictment which allege only an intent to deceive the comptroller of the currency are of no value, since that officer is not an agent appointed to examine into the affairs of a national binking association. A count which charges the making of a false report of the condition of the bank, whereas the offense created by the statute consists in making a false entry in a report, would not for that reason be insufficient to support a verdict, and therefore will not be quashed on a motion made after a plea has been entered. United States v. Bartow,* 10 Fed. R., 874.

§ 2629. Offenses on the high seas Jurisdiction Murder.- In an indictment for murder in a federal court, the allegation was that the killing was done on board a ship owned by, and belonging to, certain persons named, who are alleged to be citizens of the United States, and to have been done upon the high seas within the admiralty and maritime jurisdiction of the United States and of the particular court, and out of the jurisdiction of the courts of the United States. Held, that the indictment was sufficient to give the court jurisdiction of the case. United States v. Plumer, 3 Cliff., 62.

§2630. In an indictment for murder on the high seas it is sufficient to describe the vessel as an "American vessel then and there belonging to a citizen or citizens of the United States," though the registry act says "ships and vessels of the United States," as these phrases are used indiscriminately in penal statutes. Ibid.

$ 2631. assault. An indictment under the twenty-second section of the crimes act of March 3, 1825, for an assault with a dangerous weapon, committed on the high seas, need not allege the act to have been done feloniously, or with intent to perpetrate a felony. The act contemplates a misdemeanor and not a felony. United States v. Gallagher,* 2 Paine,

447.

§ 2632. An indictment for an assault on board of a vessel belonging in whole or in part to a citizen of the United States must allege that the place where the assault was committed was out of the jurisdiction of any state of the United States; "in the harbor of Guantanamo, in the Island of Cuba," is not sufficient. United States v. Anderson,* 17 Blatch., 238. $ 2633. larceny. It is held that an indictment for larceny upon the high seas, on the act of congress of 1790, need not state whom the goods belonged to. If it states that the goods belonged to some one -unknown to the jurors, it is sufficient. United States v. Davis,* 2 N. Y. Leg. Obs., 35.

§ 2634. revolt. An indictment which charges the defendant in the same count with making a revolt and with confining the captain of the vessel is bad, the first offense being a capital one, created by one section of the act of congress, and the second being a misdemeanor, created by another section. United States v. Sharp, Pet. C. C., 131.

§ 2635. An indictment for an attempt to commit a revolt on ship-board need not allege that the master was in the peace of the United States, or that he was a citizen of the United States. United States v. Thompson,* 1 Sumn., 170.

§ 2636. In an indictment of the members of the crew of an American vessel for disobeying the master and for endeavoring to make a revolt on the high seas, it is not necessary to allege that the defendants were citizens of the United States. Nor need such fact be proved at the trial, there being no proof to the contrary. It is not clear that such offenders could not be punished although they were not citizens of the United States. United States v. Crawford,* 1 N. Y. Leg. Obs., 388.

§ 2637. plundering a wreck. It is immaterial that an indictment for plundering a wreck alleges that the money taken was "belonging to the vessel," and the proof shows that it was taken from the wreck. The words of the statute are "from or belonging to the" vessel. United States v. Pitman,* 1 Spr., 196.

$2638. Pension laws. It is usually sufficient to charge the offense in the very language of the statute; and hence a count, in the language of the statute creating the offense, which charges the defendant with "transmitting to and presenting at the office of the commissioner of pensions," for the purpose of defrauding the United States, a forged writing purporting to be in support of a claim by a surviving soldier to bounty land, cannot be objected to on the ground that it sets forth two distinct and separate offenses - that of "transmitting to" and that of "presenting at." United States v. Armstrong,* 5 Phil., 273.

§ 2639. An indictment for withholding pension money charged that the defendant withheld a part of a pension from two minor pensioners, in that he failed to pay over to the guardian of the minors moneys collected by him as her agent. Held, that the indictment was bad for not alleging that the person who was entitled to the pension was not the person from whom it was withheld. United States v. Chaffee,* 4 Ben., 330.

§ 2640. In an indictment for withholding money from a pensioner it is sufficient to charge that the defendant was instrumental in presenting the claim of the pensioner without stating the particular circumstances in which the instrumentality consisted. United States v. Connally,* 9 Biss., 338.

§ 2641. Piracy. The United States having power to punish piracy and piratical murder on board of all vessels found on the high seas, which have no national character, and whose ownership cannot be determined, it is not necessary that the possible foreign nationality of the vessel should be negatived in the indictment for such offenses. United States v. Demarchi,* 5 Blatch., 84.

§ 2642. Rape.— An indictment for rape is not defective because it alleges that the woman was gotten with child. United States v. Dickinson,* Hemp., 1.

§ 2643. Robbery.- An indictment for forcibly taking bank-notes from another, to his great loss and damage, must allege whose property the bank-notes were. United States v. McNemara,* 2 Cr. C. C., 45.

2644. Resisting an officer.-An indictment for assaulting an officer employed in enrolling for purposes of a draft of soldiers must contain an averment that the assault had some relation to the performance of his duties by the officer. United States v. Gleason,* Woolw., 75.

§ 2645. An indictment under section 22 of the act of April 30, 1790 (1 Statutes at Large, 117), which makes it an offense knowingly and wilfully to obstruct, resist or oppose any officer of the United States in serving or attempting to serve or execute any legal process whatsoever, must show by proper averments that the process was legal, not only in form and purpose, but as emanating from some tribunal, judge or magistrate authorized by the laws of the United States to issue such process. An averment that the warrant was duly issued is insufficient. The facts of such issue must be set forth, and when the authority of the person issuing the process is dependent on the existence of certain facts, these facts must be shown to have existed; and the fact that such facts did exist cannot be shown by the records of the court in which the indictment is pending, if they are not alleged therein. An indictment must contain every allegation necessary to show that the offense has been committed and cannot be aided by the records of the court. United States v. Stowell,* 2 Curt., 153.

§ 2646. An indictment for forcibly resisting an officer of the customs, contrary to the act of March 2, 1799, need not set forth that the goods were illegally imported, or that the inspector had probable cause to suspect an illegal importation, or was searching for the purpose of ascertaining their character. These are properly matters of evidence. United States v. Bachelder,* 2 Gall., 14.

§ 2647. Under the act of April 30, 1790, punishing any person who "shall knowingly and wilfully obstruct, resist or oppose any officer of the United States in serving or attempting to serve or execute any mesne process or warrant, or any rule or order of the courts of the United States, or any other legal or judicial writ or process whatsoever," an indictment for resisting an officer in executing a warrant of attachment upon the filing of a libel against a vessel need not show a good, valid and sufficient libel, or that the averments in the libel were true. United States v. Tinklepaugh,* 3 Blatch., 425.

§ 2648. A deputy marshal is an officer of the United States authorized to serve process within the meaning of the above act, and the resistance of a deputy is punishable by the act. Ibid.

§ 2649. In an indictment for resisting an officer in his search for concealed spirits, it is not necessary to aver that the defendant concealed the spirits for which the officer was searching. The defendant might be liable though he owned neither the spirits nor the building in

which they were concealed, and did not make or keep the spirits. United States v. Fears,* Woods, 510.

$2650. An indictment for hindering or obstructing an officer should show the authority under which the officer was acting, for it is no offense to hinder or obstruct an officer who is acting without authority. Ibid.

§ 2651. Slave trade.- An indictment for causing a vessel to sail from a port to engage in the slave trade charged that the act was done by the defendant as master, for some other person, the name whereof being to the jurors yet unknown," etc. Held, that this being a fact, the objection that the name of the owner of the vessel did not appear was not available in arrest of judgment. United States v. La Coste, 2 Mason, 142.

$2652. Where a statute makes it criminal to cause any vessel to sail or be sent away with intent to employ her in the slave trade, an indictment charging the defendant with causing a vessel to sail with the intent that she should be employed in the slave trade is bad. United States v. Gooding, 12 Wheat., 460.

§ 2653. Riot. An indictment for riot which alleges that the defendants assembled to disturb the peace, and, being assembled, did certain acts, is sufficient. United States v. Fenwick, 4 Cr. C. C., 675.

§ 2654. An indictment charging the defendants with inciting others to insurrection, tumult and riot is good. It need not aver that insurrection, tumult and riot were excited thereby. Ibid.

$2655. False pretenses.- If three join in making a false pretense and one of them obtains the money, an indictment against all should aver that they all received it. If it avers that one obtained the money, the others cannot be held guilty upon it. Jones v. United States,* 5 Cr. C. C., 647.

$2656. Practicing medicine without a license.- The application of external remedies to the eyes is not the practice of the medical, but rather of the chirurgical, art, and the offense of practicing such an art without a license or diploma, as required by local statutes, is not sufficiently charged in an indictment averring that the defendant "did practice . . . in the medical art, and receive payment for his services, without first having obtained a license, .. and without the production of the diploma;" the statute requiring such a license or diploma mentioning both the medical and chirurgical profession. United States v. Williams,* 5 Cr. C. C., 62.

$2657. Selling liquor.-It is not necessary to specify the kind of liquor sold, or the name of the person to whom it was sold, in an information for selling liquor without a license. United States v. Gordon, 1 Cr. C. C., 58.

§ 2658. Selling liquor to Indians. An indictment under section 2139, Revised Statutes, punishing "Every person, except an Indian in the Indian country, who sells, exchanges, gives, barters or disposes of any spirituous liquors or wine to any Indian under the charge of any Indian superintendent or agent," must allege that the defendant is not "an Indian in the Indian country." United States v. Winslow,* 3 Saw., 337.

$2559. Disorderly house. Where the indictment charges that the defendant undertook to keep a disorderly house as a common tavern without authority therefor, and did keep the same as a common tippling house, and therein sold spirituous liquors to all persons calling for the same, to be drunk in and about the house at all times, day and night, Sundays and other days; and permitted idle and ill-disposed persons there to assemble and continue drinking and tippling, to the common nuisance, etc., it sufficiently charges the keeping of a common disorderly house. United States v. Columbus,* 5 Cr. C. C., 304.

$2660. Second offense. In an indictment for stealing, a charge, as for a second offense, which avers that, heretofore, to wit, on the 2d day of October, 1832, at the circuit court of the District of Columbia for the county of Alexandria, then duly sitting, the said Henry Thompson was tried and convicted of larceny, as by the said record of said court it doth appear," was held to be insufficient. United States v. Thompson, 4 Cr. C. C., 335.

§ 2661. Public minister. In an indictment for imprisoning a public minister it is not necessary to charge that the defendant was an officer authorized to execute process. United States v. Benner,* Bald., 234.

$2662. Neutrality.-Under the neutrality act of 1818, declaring it to be a misdemeanor "if any person shall, within the territory or jurisdiction of the United States, enlist or enter himself, or hire or retain another person to enlist or enter himself, or to go beyond the limits or jurisdiction of the United States with intent to be entered or enlisted, in the service of any foreign prince," etc., an indictment for hiring or retaining, etc., must allege the intent of the person hired. United States v. Kazinski,* 2 Spr., 7.

$ 2663. Performing marriage ceremony.- Where an act is by statute forbidden to be done by persons of certain description only, an indictment, grounded on such a statute, must, by substantive averment, bring the traverser within that description. And hence under an act

declaring that "if any minister shall join in marriage" certain persons describe 1, without the consent of the parent or guardian, he shall be fined a certain sum, the indictment must charge affirmatively that the defendant was a minister at the time when he committed the alleged offense. And if the act requires that he should be such a minister as is by another section of the same act authorized to celebrate rites of marriage, the indictment must show him to be such a minister as is authorized by that section. To call the defendant "Andrew Thomas McCormick, clerk," is not a sufficient allegation that he was a minister authorized to solemnize marriage, and was so authorized at the time of the commission of the alleged offense. (FITZHUGH, J., dissented from this last proposition.) United States v. McCormick,* 1 Cr. C. C., 593.

§ 2664. Unlicensed captain, mate, pilot, etc.- An indictment under section 4438 of the Revised Statutes, declaring that "it shall be unlawful to employ any person, or for any person to serve, as master, chief mate, engineer or pilot on any steamer, who is not licensed by the inspectors, and any one violating this act shall be liable to the penalty of $100 for each offense," need not allege knowledge on the part of the defendant that the engineer employed was not licensed. Nor need such knowledge be proved on the trial. United States v. Sims,* 9 Fed. R., 443.

§ 2665. Treason.- An indictment for treason under the act of July 17, 1862, prescribing the punishment for treason, need not use specifically the term "levying war;" it will be sufficient if the indictment follows the language of the act. United States v. Greathouse, 4 Saw., 457; 2 Abb., 364 ( 1183-94). Must allege a specific act. 2 Burr's Tr., 415.

§ 2666. Libel.- An indictment for libel charged that B., the defendant, on a certain date, "in the county of Washington and District of Columbia, of his malice, etc., did compose and write a certain false, etc., libel of and concerning the said C., in the form of a newspaper article, printed in a newspaper called and known as the Detroit Free Press, printed in the city of Detroit, ... which said scandalous, etc., libel he, the said B., afterwards, to wit, on the day and year aforesaid, and in the county and district aforesaid, did then and there unlawfully, etc., publish and cause to be published." Held, that the indictment was insufficient, as it failed to allege any distinct publication of the libel in the District of Columbia. In re Buell, 3 Dill, 116 (§§ 3183-87).

2667. The want of a distinct allegation of the publication of a libel is fatal to an indictment therefor. Ibid.

XXVII. MISCELLANEOUS QUESTIONS OF PRACTICE.

SUMMARY - Power of district attorney over pending cases, § 2668; on preliminary examinations, § 2669, 2670.— Copy of indictment, § 2671.— Directing a verdict, § 2672.— Arraignment; standing mute, § 2673.— Separate trials, § 2674.— Affidavits of jurors to impeach their verdict, § 2675.— Procedure; effect of state laws, 2676.- Proceedings before com‐ missioners; commitment, §§ 2577, 2678; place of commitment, § 2679.

§ 2668. While a charge is under investigation, before either a commissioner or the grand jury, the district attorney has no absolute power over the case. It is only after the indictment is found and before the trial is commenced that his power over the case may be said to be absolute, United States v. Schumann, § 2680-82. See § 2847.

§ 2669. A United States commissioner, being an examining and committing magistrate, bound to hear all complaints of the commission of any public offense against the laws of the United States in his district; to cause the offender to be arrested, and to examine into the matters charged; to summon witnesses for the government and the accused; to commit for trial or discharge from arrest, according to the evidence, is alone accountable for the discharge of these duties, and in their discharge he is not subject to the control of the district attorney or any other officer. Ibid.

§ 2670. The district attorney may appear before the commissioner, and attend the presen tation of the evidence; but in that position he is only counsel for the government; he cannot direct what finding the magistrate shall make, or what course he shall pursue. The magistrate should hesitate to continue an investigation after the district attorney has abandoned it. Yet there are cases in which it is his duty to proceed, notwithstanding the abandonment of the cause by the district attorney. Ibid.

2671. Where a prisoner, indicted for a capital offense, after he had pleaded not guilty and a postponement for several weeks, was about to be put on trial, objected that he had not received a copy of the indictment until the day preceding, and, at his suggestion, the trial was postponed four days to enable him to make more thorough preparation for the trial, and no further objection was made at any stage of the trial until his counsel, in making his closing