But the act charged is the taking of the oath. The circumstances under which the oath was taken are introduced to show that the oath was authorized by law. Matter showing that the report which the accused verined by his oath was made in pursuance of a request from the comptroller of the currency, and in accordance with a form prescribed by him, would be, therefore, matter of inducement, and inducement does not, in general, require exact certainty. This indictment contains the averment that the report in question was "made to the comptroller of the currency and verified, as aforesaid, as by law required." I am not prepared to say that authority cannot be found for holding such an averment in regard to Buch matter sufficient after verdict to warrant judgment on the conviction. See Rex v. Salisbury, 4 T. R. 451; Rea; v. Bidwell, 1 Den. C. C. 222. The motion to quash is accordingly denied.
UNITED STATES 'D. BARTOW.-
(Oir"uit Court, S. D. New York.
INDICTMENT UNDER SECTION
5209, REV. Sr.-SUFFICIENCY OF. An indictment under section 5209, Rev. St., which charges the making of a false entry in a report with intent to deceive the comptroller of the currency, cannot be sustained, as he is not an agent appointed to examine the affairs of a natIOnal hank within the meaning of the statute. Where, in an indictment under said section, a bank officer was charged with making a report with intent to deceive" whereby, by means of a false entry therein by him made," held, upon amotion to quash, tbat this language might be sufficient to support a finding that he made a. false entry in a report within the meaning of the statute.
BENEDICT, D. J. This is a motion to qllash an indictment framed under section 5209 of the Revised Statutes, by which statute it is made an offence 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 any agent appointed to examine the affairs of such association. The indictment is curiously framed, and under other circumstances Ishould have little hesitation in directing it to be quashed. But the lapse of time since the date of the alleged offence is such that it is now too
.Reported by S. Nelson White, Esq., of the New York bar..
UNITED STATES V. BARTOW.
late to frame a new indictment. The defendant has long since pleaded to the indictment as it stands, and the motion to quash at this time was permitted only as a matter of favor, to enable the defendant to point out if he could defects that would necessarily be fatal on a motion in arrest of judgment. The present motion must therefore fail, unless the indictment disclose defects that would clearly be fatal after verdict. Such a defect plainly appears in the first, second, and third counts, where the only intent charged is an intent to deceive John r. Knox, the comptroller of the currency. The intent made by the statute an ingredient of the offence is an intent to defraud the association, or to deceive any officer of the association, or any agent appointed to examine the affairs of any such association. 'I'he comptroller of the currency is not an agent appointed to examine the affairs of a national banking association within the meaning of this statute. The first, second, and third counts of the indictment are, therefore, good for nothing. The other counts are differently framed in regard to the intent. 'fhey are alike in form, and the only objection taken to them is that the substance of the charge in each is the making of a false report of the condition Qf the bank, whereas the offence created by the statute consists in making a false entry in a report. Upon this ground it is contended that no offence is charged in either of these But while the wording of the indictment doubtless affords some ground for such a contention, it is not certain that the language employed would be held insufficient to support a conviction for making a false entry in the report. These are the words: "Whereby, by means of a false entry therein by him made." This language might be held to constitute an imperfect averment that the defendant made a false entry in the report described, and therefore sufficient to support a finding that the defendant made a false entry in a report within the meaning of the statute. Any doubts existing upon such a question, when raised, as in this case, should be left to be solved upon the motion in arrest of judgment. The motion to quash is, therefore, denied.
UNITED STATES tI. KEYES.
(Circuit Court, D. New Hampshire. March 13,1882.)
1. CRIMINAL LAW-POSSESSION OF UNSTAMPED TOBACCO.
Every person who has in his possession, not in a manufactory, manufactured tobacco, in any quantity, unstamped, whether the same is refuse and worthless or otherwise, or whether it had been purchased to be remanufactured into snuff or not, or whether a tax had been paid on it prior to the passage of the act of congress making it criminal to have in possession unstamped manufactured tobacco, is liable for the penalty imposed in section 71 of the act of 1868, (15 St. at Large, 156.)
2. SAME-GIST OF OFFENCE.
The gist of the offence is having in possessIOn unstamped manufactured tobacco, irrespectiveof the considerations of value, purpose, or payment of the tax.
SAME-POWER OF CONGRESS.
Congress has as much power to say that the tax shall be paid in a particular way,-that is, by stamps,-as it has to impose any tax, and all its requirements must be complied with.
On Motion for New Trial. U. S. Atty. Role, for plaintiff. Mr. Marston, for defendant. CLARK, D. J. The respondent was indicted und()r the seventy-first section of the act of 1858, (15 St. at Large, 156,) for having in his possession on the first day of May, 1870, and from that time, in a certain barn, to the twenty-eighth day of the same May, and, not in a manufactory of tobacco, or in a bonded warehouse, 200 pounds of manufactured tobacco, without the proper stamps affixed thereto, and was fouud guilty by the jury. It appeared in evidence that some time previous to May, 1870, the respondent purchased in Boston of Russell & Willey some 226 pounds of tobacco, the remnants of various lots, of which they had previously sold the balance. It was manufactured tobacco, in plugs, some "cavendish," some "navy," but damaged. The respondent paid 35 cents per pound for it, and it was packecl in two barrels. When Russell & Willey sold it it was unstamped, and no taxes had been paid upon it. The respolldent knew this and so purchased it. He gave his note in payment for it. When the note became due he declined to pay it, because the tobacco had been afterwards sold in violation of law, and complained of Russell for selling him unstamped tobacco, and caused him to be arrested. Russell settled with the officers by paying, by way of pen