In an indictment for committing an offense against a statute,
the offense may be described in the general language of the act,
but the description must be accompanied by a statement of all the
particulars essential to constitute the offense or crime and to
acquaint the accused with what he must meet on trial.
A count in an indictment under Rev.Stat. § 5480 which
charges that the defendant,
"having devised a scheme to defraud divers other persons to the
jurors unknown, which scheme he . . . intended to effect by
inciting such other persons to open communication with him . . . by
means of the post office establishment of the United States, and
did unlawfully, in attempting to execute said scheme, receive from
the post office . . . a certain letter [setting it forth] addressed
and directed [setting it forth] against the peace,"
&c., does not sufficiently describe an offense within that
section, because it does not state the particulars of the alleged
scheme to defraud, such particulars being matters of substance, and
not of form, and their omission not being cured by a verdict of
guilty.
The case, as stated by the Court, was as follows:
This case comes before us from the Circuit Court for the
Southern District of New York on a certificate of division of
opinion between the judges. The defendant was indicted in that
court for an alleged offense, described in general terms as that of
devising "a scheme to defraud divers other persons," to the jurors
unknown, and intending to effect it by inciting
Page 124 U. S. 484
them to open communication with him through the post office
establishment.
The indictment contained two counts, but, upon the plea of not
guilty, the case was submitted to the jury upon the second count
alone. That count was as follows:
"And the jurors aforesaid, on their oath aforesaid, do further
present that Sigismund Hess, otherwise called Samuel Hayes, late of
the City and County of New York, in the district and circuit
aforesaid, yeoman, heretofore, to-wit, on the third day of March,
in the year of our Lord one thousand eight hundred and eighty-seven
at the Southern District of New York, and within the jurisdiction
of this Court, having theretofore devised a scheme to defraud
divers other persons to the jurors aforesaid as yet unknown, which
said scheme he, the said Sigismund Hess, otherwise called Samuel
Hayes, then and there intended to effect by inciting such other
persons to open communication with him, the said Sigismund Hess,
otherwise called Samuel Hayes, by means of the post office
establishment of the said United States, did unlawfully, in and for
attempting to execute said scheme, receive from the post office of
the United States at the City of New York a certain letter in the
words and figures following, that is to say:"
"BONILLA, D.T., 2, 25, '87"
" Dr. Sir: If there is any money to be made at it, then count me
in. Send on all the confidential terms you have, and you will never
be betrayed by"
" Yours, truly,"
"J. M. DAVIS"
" Return this letter"
which said letter was then and there enclosed in a sealed
envelope, addressed and directed in words and figures following,
that is to say: "S. Brunk, Esq., 270 West 40th St., New York City,
New York, c.o. Boot-Black," against the peace of the United States
and their dignity and contrary to the form of the statute of the
said United States in such case made and provided.
The jury found the defendant guilty, and a motion was
Page 124 U. S. 485
made for a new trial and in arrest of judgment, when the
following questions occurred upon which the judges holding the
court were divided in opinion:
"I. Does the second count of the indictment sufficiently
describe an offense under § 5480, Revised Statutes?"
"II. If there is any defect or imperfection in the second count
of the indictment, is it in matter of form only, not tending to the
prejudice of the defendant, and within the provisions of §
1025, Revised Statutes?"
"III. If there is a defect or imperfection in the second count
of the indictment, is it aided and cured by the verdict?"
Thereupon, on motion of the district attorney, it was ordered
that the points upon which the judges disagreed should be
certified, with a copy of the indictment and an abstract of the
record, to this Court for final decision.
The following is § 5480, Rev.Stat., upon which the
indictment is founded:
"If any person, having devised or intending to devise any scheme
or artifice to defraud to be effected by either opening or
intending to open correspondence or communication with any other
person, whether resident within or outside the United States, by
means of the post office establishment of the United States, or by
inciting such other person to open communication with the person so
devising or intending, shall, in and for executing such scheme or
artifice, or attempting so to do, place any letter or packet in any
post office of the United States, or take or receive any therefrom,
such person so misusing the post office establishment shall be
punishable by a fine of not more than five hundred dollars and by
imprisonment for not more than eighteen months, or by both such
punishments. The indictment, information, or complaint may
severally charge offenses to the number of three when committed
within the same six calendar months, but the court thereupon shall
give a single sentence, and shall proportion the punishment
especially to the degree in which the abuse of the post office
establishment enters as an instrument into such fraudulent scheme
and device. "
Page 124 U. S. 486
MR. JUSTICE FIELD, after stating the facts as above, delivered
the opinion of the Court.
The statute upon which the indictment is founded only describes
the general nature of the offense prohibited, and the indictment,
in repeating its language without averments disclosing the
particulars of the alleged offense, states no matters upon which
issue could be formed for submission to a jury. The general, and
with few exceptions, of which the present case is not one, the
universal rule on this subject is that all the material facts and
circumstances embraced in the definition of the offense must be
stated, or the indictment will be defective. 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 statute is directed against "devising, or intending to
devise, any scheme or artifice to defraud," to be effected by
communication through the post office. As a foundation for the
charge, a scheme or artifice to defraud must be stated which the
accused either devised or intended to devise, with all such
particulars as are essential to constitute the scheme or artifice
and to acquaint him with what he must meet on the trial.
The averment here is that the defendant, "having devised a
scheme to defraud divers other persons to the jurors unknown,"
intended to effect the same by inciting such other persons to
communicate with him through the post office, and received a letter
on the subject. Assuming that this averment of "having devised" the
scheme may be taken as sufficiently direct and positive, the
absence of all particulars of the alleged scheme renders the count
as defective as would be an indictment for larceny without stating
the property stolen, or its owner or party from whose possession it
was taken.
Page 124 U. S. 487
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. One or two cases will serve
as an illustration of the doctrine.
In
United States v. Cruikshank, 92 U. S.
542, the counts of the indictment in general language
charged the defendants with an intent to hinder and prevent
citizens of the United States of African descent named therein, in
the free exercise and enjoyment of all the rights, privileges, and
immunities, and protection granted and secured to them respectively
as citizens of the United States and of the State of Louisiana,
because they were persons of African descent, but did not specify
any particular right the enjoyment of which the conspirators
intended to hinder or prevent, and it was held that the averments
of the counts were too vague and general, and lacked the certainty
and precision required by the established rules of criminal
pleading, and were therefore insufficient in law. In speaking of
the necessity of greater particularity of statement, the Court said
(p.
92 U. S.
558):
"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.Crim.Pr. & Pl. 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 form 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,
Page 124 U. S. 488
and these must be set forth in the indictment with reasonable
particularity of time, place, and circumstances."
In
United States v. Simmons, 96 U. S.
360, the indictment was for violations of certain
provisions of the Revised Statutes relating to distilled spirits.
The second count, pursuing the words of the statute, charged that
the defendant
"did knowingly and unlawfully cause and procure to be used a
still, boiler, and other vessel for the purpose of distilling,
within the intent and meaning of the internal revenue laws of the
United States, in a certain building and on certain premises where
vinegar was manufactured and produced."
Upon this count, the court was asked two questions, one of which
was whether it as sufficient, in an indictment drawn under the act
which prohibited the use of a still, boiler, or other vessel for
the purpose of distilling in any building or on premises where
vinegar was manufactured or produced, to charge the offense in the
words of the statute. The court answered this question in the
negative, observing that
"where the offense is purely statutory, having no relation to
the common law, it is"
"as a general rule sufficient in the indictment to charge the
defendant with acts coming fully within the statutory description,
in the substantial words of the statute, without any further
expansion of the matter,"
but adding that
"to this general rule there is the qualification, fundamental in
the law of criminal procedure, that the accused be apprised by the
indictment, with reasonable certainty, of the nature of the
accusation against him, to the end that he may prepare his defense
and plead the judgment as a bar to any subsequent prosecution for
the same offense. An indictment not so framed is defective,
although it may follow the language of the statute."
It accordingly held that, tested by the rules thus laid down,
the second count was insufficient.
See also United States v.
Carll, 105 U. S. 611.
Following this rule, it must be held that the second count of
the indictment before us does not sufficiently describe an offense
within the statute. The essential requirements -- indeed all the
particulars -- constituting the offense of devising a scheme to
defraud are wanting. Such particulars are matters of substance,
Page 124 U. S. 489
and not of form, and their omission is not aided or cured by the
verdict. It follows that
The three questions certified to us must be answered in the
negative, and it is so ordered.
