There is here no provision in regard to services for procuring pay, nor any provision in the act regarding it. The pensions to soldiers, their widows and orphans, is not pay, and the provisions for paying them are not under that act. Arrearages of pay were not collected under any pension law, or through the pension office. What is meant by bounty here is said in the briefs to be also passed upon and paid in another bureau. The indictment is perhaps on this point a little obscure. In the sixth count the defendant is charged as guilty of withholding arrearages of pay and bounty, and in the tenth with withholding pay and bounty. Since the act in which the offense is described makes no provision for pay or for bounty, and the fees regulated and the acts forbidden are those done in regard to that act, it seems a reasonable construction of the penal part of the statute that withholding pay and bounty, which are not mentioned there, are not intended to be punished by the act. It is not in reference to pay that Congress was legislating. The persons described who may be guilty are those prosecuting claims for pensions or bounty before the pension office. The offense described is "withholding from a pensioner or other claimant the whole or any part of the claim allowed and due said pensioner or claimant," and it is but a just limitation of the word "claimant" that he should be a claimant under that act, a claimant before the pension bureau. This part of the section is to be taken in connection with the taking of illegal fees, which manifestly refers to cases before the pension office, and which are described and punished in the same sentence and by the same penalty. The word "bounty" is not used in this sentence, nor the word "pay,” but the argument is that the word “claim” includes them. We think this would be an unjustifiable extension of a penal statute beyond its terms and against its purpose. The first question is, therefore, to be answered in the negative, and we need not inquire if the statute was repealed, since the offense described in the indictment is not within it. The offenses in this indictment are said to have been committed in 1868. The law then in existence did not make the act charged a crime. It is argued by counsel that withholding the money due is a continuous offense, and if the same money was withheld after the act of 1873 did make such withholding punishable, the indictment is good under that act. But without deciding here how far the withholding the money under a law which made that an offense when the wrongful withholding began, can be held to be a continuous offense, we are of opinion that it would be a forced construction of the act to hold that it was intended to apply to a case where the money had already been withheld five years when the statute was passed. The party might very well be criminally wrong in failing to pay when he received it; but Congress could hardly be supposed to intend to punish as a crime his failure to pay afterwards what was in law but a debt created five years before. This answers the fifth question, namely, "Can the defendant be punished under section 31 of the act of March 3, 1873?" These answers also render unnecessary a reply to the others. It is, therefore, ordered to be certified to the Circuit Court that the first and fifth questions are answered in the negative, and that answers to the others are thereby rendered unnecessary. So ordered. EMBEZZLEMENT BY OFFICERS - INTENT TO DEFRAUD. UNITED STATES v. VOORHEES. [9 Fed. Rep. 143.] In the United States Circuit Court, New Jersey, 1881. Under Section 5209, of the Revised Statutes of the United States, an intent to defraud the association, or other company or person, is an essential element of the crime in every case. The words, "with intent in either case to injure or defraud," etc., apply as well to embezzlement, etc., of the funds, as to the making false entries in the books. This was a motion to quash the indictment found against the defendant, as president of the First National Bank of Hackensack, under section 5209 of the Revised Statutes. The first count charges that the defendant did embezzle, abstract, and willfully misapply certain funds and credits of the bank of the value of $5,000. The second is in the same form, except that it specifies the particular stocks abstracted. Neither count alleges any intent. It was moved to quash the first count because it was too general in its terms, and both counts because no intent is alleged. The section is as follows: "SEC. 5209. Every president, director, cashier, teller, clerk, or agent of any association, who embezzles, abstracts, or willfully misapplies any of the moneys, funds or credits of the association; or who, without authority from the directors, issues or puts in circulation any of the notes of the association; or who, without such authority, issues or puts forth any certificate of deposit, who draws any order or bill of exchange, makes any acceptance, assigns any note, bond, draft, bill of exchange, mortgage, judgment, or decree; or who makes any false entry in any book, report, or statement to the association, with intent, in either case, to injure or defraud the association or any other company, body politic or corporate, or any individual person, or to deceive any such officer of the association, or any agent appointed to examine the affairs of any such association; and every person who with like intent aids or abets any officer, clerk, or agent in any violation of this section, - shall be deemed guilty of a misdemeanor, and shall be imprisoned not less than five years nor more than ten." Joseph D. Bedle, for the motion. A. Q. Keasbey, United States Attorney, contra. MCKENNAN, C. J., announced the opinion of the court. He said that as to the first count the object of more specific allegations was to give the defendant full and fair information as to the charge, and to be a bar against another prosecution. It has been usual in this district to hold indictments like this, in the words of the statute, to be good, and the object of more definite statements can always be reached by an order for a bill of particulars. As to the second connt, it is not subject to this objection, but specifies the funds abstracted. These objections must, therefore, be overruled. The other objection applies to both counts. It relates to the want of allegation of intent. It is urged that the punctuation of the statute shows that as to the first three offenses stated, of which the charge in the indictment is one, the intent referred to in the section was not applied, but that it applies only to the last offense of false entries in any book, report or statement. Congress may provide that acts of this character may be punished without allegation or proof of criminal intent, and if such provision is clear the courts must enforce them; but if the provision is repugnant to the sense of justice, and the offense is made very highly penal, as in this case, courts are disposed to give effect to any fair doubt as to the intention. If it were not for the punctuation, on which the district-attorney has laid so much stress, there would be no doubt that the intent mentioned would apply to all the offenses mentioned; but in a criminal case, where much is to be allowed in favor of liberty, it is unsafe to rely on a mere matter of punctuation. If these offenses were separated only by commas there would be no doubt that the intent with which the section closes would apply to all its divisions. But we think that, as it stands, the fair construction of the act, and the latter part of the sec tion which provides that any one who aids or abets an officer in doing any of the acts with like intent shall be similarly punished, must be to make it necessary to allege and prove the intent as to all. It can not be supposed that the Legislature intended to require more proof against the abettor than was required against the principal; and this part of the statute makes it necessary to construe the preceding part in such a way as to apply the intent to all of the offenses, notwithstanding the punctuation of the sentences. Upon these grounds the indictment must be quashed. Judge NIXON Concurred in this result, and said that while the statute would bear both constructions, yet, in a criminal case, where a minimum penalty of five years is inflicted, the most lenient and merciful construction should be adopted. EMBEZZLEMENT BY OFFICERS -CONSTRUCTION OF STATUTE. [6 Wall. 385.] In the Supreme Court of the United States, 1867. 1 Embezzlement by Officers - "Officer or Person Charged with Safe Keeping of Public Money." - A clerk in the office of the assistant treasurer of the United States, at Boston, appointed by such assistant treasurer, with the approbation of the Secretary of the Treasury, as authorized by the general appropriation act of July 23, 1866, is an officer or person "charged with the safe keeping of the public money," within the meaning of the sixteenth section of the act of August 6, 1846, and is punishable under that section for loaning the public moneys intrusted to him for safe keeping. (MILLER, GRIER and FIELD, JJ., dissenting. 1-"Officer of Banking Institution."-Section 3, of the act of June 14, 1866, providing "that if any banker, broker or other person not an authorized depositary of the public moneys," shall do either of the acts therein specified, every such act shall be held to be an embezzlement, and concluding with the penal sanction, as follows: "And any president, cashier, teiler, director, or other officer of any bank or banking association, who shall violate any of the provisions of this act, shall be deemed and adjudged guilty of an embezzlement of public money," is confined to officers of banks and banking associations, and does not apply to a clerk in the office of the assistant treasurer, at Boston. Certificate of division from the United States District Court of Massachusetts. Hartwell, being a clerk in the office of the assistant treasurer of the United States at Boston, was indicted for embezzlement of public money, the indictment, in numerous counts, being founded on the statute of 1846, and on that of 1866. The court below being divided in opinion, certified two questions: first, whether defendant was liable under the sixteenth section of the act of 1846,1 and, second, whether any offense was charged under the act of 1866 of which the court has jurisdiction. Mr. Justice SWAYNE, delivered the opinion of the court. 1 The Sub-Treasury Act. This case comes before us upon a cortificate of division in opinion of the judges of the Circuit Court of the United States for the District of Massachusetts. As disclosed in the record the case is as follows: The defendant was indicted for embezzlement. The indictment contains ten counts. The first three are founded upon the sixteenth section of the act of August 6, 1846, the remaining seven upon the third section of the act of June 14, 1866. The counts upon the act of 1846 allege that the defendant, being an officer of the United States, to wit, a clerk in the office of the assistant treasurer of the United States, at Boston, appointed by the assistant treasurer with the approbation of the Secretary of the Treasury, and as such charged with the safe keeping of the public moneys of the United States, did loan a large amount of said moneys, with the safe keeping whereof he was intrusted in his capacity aforesaid. The names of the borrowers and the amount and description of the moneys loaned are set forth. The succeeding counts allege that the defendant, being a person, not an authorized depositary of the public moneys of the United States, to wit, a clerk in the office of the assistant treasurer of the United States, at Boston, appointed by him with the approbation of the Secretary of the Treasury, having the care and subject to the duty to keep safely the public moneys of the United States, did knowingly and unlawfully appropriate and apply another portion of said public moneys, of which he had the care, and was subject to the duty, safely to keep as aforesaid, for a purpose not prescribed by law, to wit, did loan the same. The particulars with reference to the loans are given as in the preceding counts. The testimony being closed, the opinions of the judges were opposed upon the points: (1) Whether the defendant was liable to indictment under the sixteenth section of the act of August 6, 1846; and (2) whether there is any offense charged in the last seven counts under the third section of the act of June 14, 1866, of which the court had jurisdiction. The section referred to in the act of 1846 describes in three places the persons intended to be brought within its scope. The language used in that connection is: "All officers and other persons charged by this act, or any other act with the safe-keeping, transfer and disbursement of the public money, are hereby required," etc. "If any officer charged with the disbursement of the public moneys shall accept or receive," etc. "The provisions of this act shall be so construed as to apply to all persons charged with the safe-keeping, transfer or disbursement of the public money, whether such persons be indicted as receivers or depositaries of the same." Was the defendant an officer or person "charged with the safe-keep |