of fifty-seven hundred and twenty-three dollars and ninety-three cents ($5,723.93)." It is a question whether this is not too indefinite, as failing to state the kind of money embezzled,-that is, whether moneys of the United States or of some other nation; but it is not necessary to hold thus narrowly. The charge is the embezzlement of moneys and funds. The words "moneys and funds" are not of identical meaning. "Funds" includes moneys, and much more, such as notes, bills, checks, drafts, stocks, and bonds. Now, what was intended by the phrase "moneys and funds"? Was it intended to say "moneys and moneys"? The natural interpretation of the phrase is "moneys and some· other species or character of funds." The word "funds" is not used in the alternative as a synonym. It is used in the conjunctive. Its function is, as no doubt the purpose of its use was, to add something to the term "moneys." The charge, then, is, in effect, that defendant did have and receive, etc., moneys and other funds, etc. Now, is this sufficiently definite? In the case of People v. Cohen, 8 Cal. 4:2, it is there said:
"There is another objection to the indictment, which is fatal. It does not state what was the property converted. The language is, 'four hundred thousand dollars, moneys, goods, and chattels.' How can the defendant know what he is charged With, or how prepare for his defense? How much money, what goods, and what chattels?"
If, in the case at bar, only money was embezzled, the indictment should charge the embezzlement of money only. If money and other funds were embezzled, the amount and value of the several species of the property taken should be stated. The words "and funds" cannot be rejected as surplusage, for the amount and value stated in the indictment applies to moneys and funds jointly, and, rejecting either, there is no suggestion in the indictment as to the amount or value of the other. The demurrer will be sustained.
UNITED STATES v. HARTMAN. (District Court, E. D. Missouri, E. D. November 8,1894.) No. 3,847.
The offense defined in the first clause of section 5421, Rev. St., relating to falsely making, altering, forging, or counterfeiting any deed, · · · certificate, · · · or other writing, for the purpose of obtaining · · · from the government any sum or sums of money, includes not only the technical execution of such an instrument, but the making of an affidavit or certificate which is genuine itself, but contains false statements.
S.-ELEMENTS OF THE OFFENSE.
was an indictment against A. K. Hartman for a violation of section 5421, Rev. St. U. S. Defendant demurs to the indictment. Wm. H. Clopton, Dist. Atty.; for the United States. Wm. H. Kinsey, for defendant. PRIEST, District Judge. There are two counts to the indictment in this cause, each of. which is challenged by a demurrer. In the first
UNITED STATES V. HARTMAN.
the defendant is charged with falsely making, or procuring to be falsely made, and aiding and assisting in the false making of, a certain certificate and writing for the purpose of enabling one Ella Sweeney to obtain and receive from the United States, under the pension laws, the sum of $10. The certificate of the notary appended to the declaration for a widow's pension recites, not only that Ella Sweeney had personally appeared before the notary, and sworn to the declaration set forth in the indictment, but that two attesting witnesses, Annie Osburg and Peter Roscoe, also personally appeared before the notary at the same time, and swore to the statements attributed to them respectively; whereas, in truth, neither of said persons in fact personally appeared before the notary; nor were they sworn by the said notary. The indictment is framed under section 5421, Rev. St. U. S. A careful reading of this section will disclose that three offenses of different character are enumerated, the first of which relates to falsely making, altering, forging, or counterfeiting any deed, power of attorney, order, certificate, receipt, or othel.' writing, for the purpose of obtaining or receiving, or enabling any other person or p_ersons to obtain or receive, from the government, any sum or sums of money; the second, to uttering or pnblishing as true, with intent to defraud the United States, knowing the same to be false, such an instrument as described in the first paragraph; and third, to the transmission or presentation at any office or to any officer of the government of the United States such an instrument, with intent to defraud the United States, knowing the same to be false, altered, forged, or counterfeited. Both counts of this indictment are framed under the first paragraph. At the argument of this demurrer, my impression was that the offense defined consist in the technical execution of an instrument of the class defined in the statute, and not to the falsity of the statement of fact contained in such instrument. During the course of the opinion in the case of U. S. v. Staats, 8 How. 41, and rather in line of argument than tending to construe this paragraph of the section, the supreme court threw out an intimation, if not expressly deciding it, in confirmation of this thought. Upon more mature reflection, I am persuaded that this paragraph of vhe statute should have a wider scope. Indeed, I cannot conceive how any significance can be given to the words "falsely make" unless they shall be construed to mean the statements in a certificate which in fact are untrue. "Falsely" means in opposition to the truth. "Falsely makes" means to state in a certificate that which is not true, and, if this be done with the intent and knowledge which the statute condemns, it falls within the punishment; and this view, if it needs confirmation, is emphasized by section 5479 of the statute, which relates to forgeries only, and not to making an affidavit which is genuine itself, but containing untrue and false statements. The demurrer will therefore be overruled.
UNITED STATES v. McSORLEY et at. (Circuit Court ot Appeals, Second Circuit. January 9, 1895.)
Medals made of copper, washed with silver, commonly used for distribution as prizes to school children, but which have not been awarded as trophies or prizes, are not entitled tc free entry, under the tariff act of October 1, 1890, as "medals of gold, silver or copper, such as trophies or prizes."
Appeal from the Circuit Court of the United States for the Southern District of New York. This was an application by the United States for a review of the decision of the board of general appraisers concerning certain merchandise imported by J .. A. McSorley & Co. The circuit court affirmed the decision of the board. The United States appeal. Wallace Macfarlane, U. S. Atty., and Chas. Duane Baker, Asst. U. S. Atty., for the United States. Hess, Townsend & McClelland, for appellees. Before WALLACE, LACOMBE, and SHIPMAN, Circuit Judges. WALLACE, Circuit Judge. The question in this case is whether medals made of copper, washed with silver, suitable for use as tokens, and commonly used for distribution as prizes to Catholic school children, but which have not been awarded as trophies or prizes, are enumerated in free 11st of the tariff act of October 1, 1890, and entitled to free entry as "medals of gold, silver or copper, such as trophies or prizes." The board of general appraisers were of opinion that because the importations were suitable for use as prizes they were within the enumerated class; and the circuit court concurred in that opinion. We are constrained to adopt a contrary view. If congress had intended to admit free of duty all medals appropriate for use as prizes, there would have been no reason for employing the. qualifying words "such as trophies or prizes." All medals are suitable for use as prizes, according to the lexicographers, and there is no evidence of a commercial meaning different from the ordinary meaning of the word "medal." We think the term of enumeration is to be read as though it were "such medals as are trophies or prizes," and be construed to include only such as belong to that category when imported, because they have been already awarded or won. Until then the medals are not, in an accurate sense, trophies or prizes. Any other construction would deprive the qualifying words of all effect, and is therefore inadmissible. The decision of the circuit court is reversed.