D. C.] Statement of the Case. He says the statement made by Mr. Hockaday that he confessed that he had $700 of the money left is untrue.” The following is the testimony on behalf of the defendant, that is of any importance in the consideration of the assignments of error. He testified first on his own behalf, saying that when in Washington, prior to July 4th, and up to August 16, 1899, he had roomed at 641 South Carolina avenue, S. E., and three other messengers occupied the same room; that he had a common trunk in the room; that he had no recollection when he had last seen the memorandum-book with H. B. Smith written in it; that he wrote the name therein of H. B. Smith, who is a cousin to whom he has been much attached, and with whom he corresponded; that he often spoke of his cousin to his friends and roommates here and in Atlanta; that he did not visit Baumgarten or Kaufman, or order the seal or give Baumgarten the card testified to by him; that he had been a messenger of the express company for three or four years; that a few minutes before 12 o'clock, noon, on July 4th, at Atlanta, Ga., he received the Montgomery pouch from Messenger Farrell in good order and with a perfect seal so far as he knew; that he placed it in the combination safe with other valuables, which was subsequently closed by the Atlanta clerk charged with that duty; that the said safe was not opened any more until reaching Charlotte; that it was there opened by the transfer clerk, Connelley, whereupon the defendant took out the packages for delivery there and gave them to Connelley; that he opened his portable safe and took therefrom the sixteen packages (the same that had been received at Atlanta from the Birmingham agent after the close of the combination safe), which, in Connelley's presence, he put in the combination safe; that Connelley was where he could look into the portable safe (which opened with a lid at top); that Connelley did not change his position before he closed the combination lock; that the safe was again opened and closed by the special agents at Salisbury, Danville, and Lynchburg, each of these opening, standing by, and finally closing the same as required; that Statement of the Case. [18 App. the exchange and delivery were made at Washington as testified to by the special clerks there. The testimony of the baggage-master of the train tended to show that express and baggage were carried in one car without a partition express at one end and baggage at the other; that baggagemaster and express messenger both occupied the car en route; that the car had a door at end, through which trainmen entered the car often; that defendant had no opportunity to open the large safe unobserved, and it was not opened, except at the points stated by him, and then by agents who could see everything put in or taken out. Defendant also testified that in June, 1899, he had a long brown mustache, and in this was corroborated by a number of witnesses. Further testimony was then offered by the defendant as recited in the bill of exceptions: John M. Connelley, a witness for the defendant, testified that on the 4th of July, 1899, he was transfer clerk for the Southern Express Company, at Charlotte, N. C., and that he remembers the arrival of the train on that evening, about 8 o'clock, and that the defendant was the express messenger on the Southern road going from Atlanta to Washington; that he went aboard the express car on the arrival of the train and opened the combination safe and transferred to the defendant what express matter he had going north and received from the defendant what was for Charlotte; that he was present and saw everything that came out of the combination safe and everything that went in the combination safe on that occasion; that he saw the defendant take a number of packages out of his portable safe and place them in the combination safe; that from the position which he occupied he could see in the said portable safe, and that he saw the bottom of the safe and saw Davis take everything cut of it, and that there was no bag or pouch in that safe, and that while the portable safe remained open witness closed the door of the combination safe and turned the combination on, thereby locking the safe. Further testimony of the witness tended to establish that the reputation of the defendant for honesty and integrity was good. The defendant introduced in his behalf all the transfer clerks and baggage-masters who were on the train on which the alleged lost package was brought from Atlanta to Washington, and the testimony of each and every one tended to show that the combination safe on said express car at that time was in good condition, and that the defendant had no opportunities of getting into that safe from the time he left Atlanta, Ga., until after he had reached Washington, except as it would be opened at each transfer station by the transfer clerks. Witnesses, including Hockaday, testified to the good character and reputation of the defendant, and the Government expressly admitted the same to be true. There was no evidence tending to show how often or long the train stopped between Atlanta and Washington, or whether the defendant left the car, temporarily, at any point, or had an opportunity to do so. The record is silent as to when, where and how he obtained meals on the trip, if any. A genuine impression of the Montgomery seal and that taken from the pouch at New York were exhibited. There were some patent differences between the impressions. The Montgomery seal had the date impressed on the reverse; there was no date on the spurious seal. [The further material facts will be found stated in the opinion. REPORTER.] Mr. Fred Beall for the appellant: 1. The indictment in this case seemingly is based upon section 41 of chapter XVI, found on page 164 of the compiled statutes of the District of Columbia. It was, however, contended in the court below, and may be contended. here, that the indictment is based upon section 40 of the crimes act. The indictment charges the larceny of " certain securities and obligations of the said United States, current as money and being in the national currency and money of the said United States of the value in the aggregate of one thousand dollars." * * * Section 41 declares "If any person shall steal any bank bill, promissory note or notes, bill of exchange, order, receipt, warrant, draft, check, or bond, given for the payment of money, or receipt acknowledging the receipt of money or other property, or any Government bonds, or other securities or stamps, United States Treasury notes, or any public stocks of the value of thirty-five dollars or upward, knowing the same to be such, any such person shall be deemed guilty of a misdemeanor, and on conviction shall be sentenced to suffer imprisonment and labor not more than three years, nor less than one year." The language of the indictment points directly to that section. If, however, it is founded on that section it is defective in that it fails to state that the securities alleged to have been taken by the appellant were by him known "to be such." The mere taking of the securities, not "knowing the same to be such" under that section, would be no crime. Evans v. United States, 153 U. S. 584. 2. The sufficiency of the indictment was attacked by the appellant, both in his motion to quash and in his motion in arrest of judgment, for the reason that the particular place where the alleged crime was committed is not stated in the indictment. It will be noted that the indictment alleges that the offense was committed "at the District aforesaid," referring to the caption of the indictment. It is insisted that the allegation of place is insufficient under the law as declared by the United States Supreme Court, in Ledbetter v. United States, 170 U. S. 606. 3. If the first count in the indictment is based on section 40 of the crimes act, the offense charged in that count is a felony. But the second count in the indictment under the law is only a misdemeanor, and the two crimes charged are separate and distinct offenses, and could not be joined together in the same indictment. 2 Bishop's New Crim. L., Sec. 327, and subd. 2, and notes, and Sec. 328. The same act cannot be both a felony and a misdemeanor. 1 Bishop's New Crim. L. 787 and 804, and note; 1 Crim. Proc., Secs. 424, 445, 446. Since an indictment cannot join a count on section 40 and a count on section 55 of the crimes act, it is insisted that the only way to sustain the indictment at all is to base the first count of the indictment upon section 41; but, as stated above, it was insisted in the court below that the first count was upon section 40, and if this court shall take the same view of it, it is insisted that the indictment is bad, for a misjoinder of counts. Whether the first count is founded on section 40 or 41 of the crimes act, it is insisted that it is defective by reason of the insufficient description of the property alleged to have been taken. Starkey Crim. Pldg. 218 and 440; 2 Russ. on Crimes, 168; Stewart's Case, 4 Serg. &. Rawle, 194; Rex v. Craven, 2 East Crim. L. 601; Rex v. Milnes, 2 East Crim. L. 602; 2 Bish. New Crim. L., Sec. 374, and notes; 2 Bish. Crim. Proc. 316-323; Rex v. Tyers, Russ. & Ry. 402; Britton v. State, 77 Ala. 205; United States v. Barry, 4 Cranch C. C. 606; United States v. McDaniel, 4 Cranch C. C. 721; United States v. Curtz, 4 Cranch C. C. 674. 4. The description of the things in the indictment alleged to have been taken is as follows: " Certain securities and obligations of the United States, current as money and being in the national currency and money of the said United States, of the value in the aggregate of one thousand dollars, the respective kinds, descriptions and denominations and value whereon the grand jurors aforesaid have no means of ascertaining, and, therefore, cannot give." This is an allegation; but whatever was taken, whether it was securities or obligations, it is alleged to have been in the national currency and money of the United States; and if it was in the national currency and money, then it was necessarily legal-tender money. National currency means the legal-tender money of the United States; but if it did not have that signification when the pleader coupled the expression "national currency" by the copulative conjunction "and" with the word "money," he intended evidently to declare, and the legal effect of the language is to declare, that the securities and obligations taken were money of the United States. If the language employed can receive any other construction, then |