substitute." 25 But a word may have a technical meaning in pleading indictments without possessing one in civil cases.26 In such a case, its use in the latter would be insufficient.27 In a cases of entries in account books, it is the safer practice to aver by innuendo what they purported to show and in substance indicated 28 Ordinarily, conclusions of law are insufficeint and the facts should be alleged so that the indictment sets forth an unlawful act.29 Thus, it is insufficient to charge that certain importations were "contrary to law," 30 or that an officer of a national bank "willfully misapplied its funds," 31 or that a statutory notice was given to the "proper officers" of certain corporations; 32 or that a quarantine was "duly and legally established" by the Secretary of Agriculture.33 The allegations that a certain publication was "obscene, lewd and lascivious," 84 and that a ship was fitted out for the slave trade 35 are sufficient allegations of fact. Where the statute provides that several things connected by the disjunctive "or" shall constitute a crime, the indictment should connect them by the conjunctive "and" before evidence can be admitted as to more than one act,86 but if the meaning is clear a pleading in the disjunctive is not fatal.37 Where the indictment contains several counts, one may be sufficient which refers to a prior count for a statement of some of the facts that it sets forth,38 although the count to which it 25 Nave-M'Cord Mercantile Co. v. U. S., C. C. A., 182 Fed. 46, 48. 26 Andrews Institute V. N. Y. Steam Co., C. C. A., 266 Fed. 872, per Hough, J. 27 Ibid. 28 U. S. v. Britton, 107 U. S. 655, 663, 27 L. ed. 520. 29 Keck v. U. S., 172 U. S. 435, 43 L. ed. 505. 30 Ibid. 31 U. S. v. Britton, 107 U. S. 655, 669, 27 L. ed. 520. 32 U. S. y. El Paso & N. E. R. R. Co., 178 Fed. 846. 33 Ibid. 34 Konda v. U. S., C. C. A., 166 Fed. 91. 35 U. S. v. Gooding, 12 Wheaton 461, 473, 6 L. ed. 693. 36 Potter v. U. S., 155 U. S. 438, 39 L. ed. 214; Ackley v. U. S., C. C. A., 200 Fed. 217. 37 Stockslager v. U. S., C. C. A., 116 Fed. 590; Samuels v. U. S., C. C. A., 232 Fed. 536. 38 Bartholomew v. U. S., C. C. A., 171 Fed. 902; Doe v. U. S., C. C. A., 253 Fed. 903. refers is barred by the statute of limitations 39 or is otherwise insufficient.40 It is the safer practice always to use the language of the statute in charging a statutory offense; 41 but that is not, required if the averments bring the charge within the true meaning of the act.42 Statutes need not be pleaded since the court takes judicial notice of them.48 The same is true of the rules and regulations of the Executive Department, which are authorized by statute,44 but if the indictment undertakes to set forth the statute upon which it is based by a reference to its title, chapter, or otherwise; a variance might be fatal.45 Where the offense is charged as committed with reference to two persons, who are named, and proved as to one of them alone, the variance is not fatal.46 A citation of a statute on the margin of an indictment is not a part of the indictment itself and does not limit the crime to one described in that statute alone; but the indictment will be good if it states an offense embraced in any statute then in force.47 The averment that an offense charged was "contrary to the form of the statutes in such case made and provided, and against the peace and dignity of the United States," although customary is a mere conclusion of law, the omission of which is a matter of form and immaterial.48 A prayer is not essential to the validity of an indictment.49 § 497a. Pleading matters of inducement and collateral matters. Matters of inducement may ordinarily be set forth in general terms.1 Thus, it is sufficient in an indictment against a trustee in bankruptcy for official misconduct to aver that he 39 U. S. v. Ridgway, 199 Fed. 286. 40 Ibid. 41 Potter v. U. S., 155 U. S. 438, 39 L. ed. 214. 42 Lemon v. U. S., C. C. A., 164 Fed. 953. 43 Bridgeman v. U. S., C. C. A., 140 Fed. 577, supra, § 329. 44 Caha v. U. S., 152 U. S. 211, 38 L. ed. 418, supra, § 329a. 45 U. S. v. Goodwin, 20 Fed. 237. 46 Bennett v. U. S., C. C. A., 194 Fed. 630. 47 Williams v. U. S., 168 U. S.. 382, 18 Sup. Ct. 92, 42 L. ed. 509. 48 Frisbie v. U. S., 157 U. S. 160, 39 L. ed. 657. 49 Fisher v. U. S., 1 Oklahoma 252. § 497a. 1 Blake v. U. S., C. C. A., 71 Fed. 286; Kerreh v. U. S., C. C. A., 171 Fed. 366. was "duly appointed" without setting forth or describing his election or the order of his appointment. So in an indictment for assaulting an officer while engaged in serving process it is sufficient to describe the warrant which he was engaged in serving as "duly issued." Collateral matters need not be described with as much particularity as the gist of the offense. In an indictment for a conspiracy to commit an unlawful act the object of the conspiracy need not be described as specifically as the conspiracy itself. In an indictment for the mailing of letters in execution of a fraudulent scheme, the description of the fraud need not be as explicit as that of the letters mailed. In a count based upon a statute forbidding the transportation of property by any device for less than the lawful rate, the device need not be particularly described. In a count for bribery to influence official action upon leases, the leases need not be set forth in detail. If it is necessary to plead a negative in the description of a collateral matter general terms may be used.9 § 497b. Pleading negatives in indictments. When the statutory description of the crime contains exceptions, such exceptions must be negatived in the indictment; 1 but this is only necessary when the exception is such as to render its negation an essential part of the definition of the offense. The language creating the offense is so completely separable from the exception that the essential ingredients of the offense may be 2 Kerrch v. U. S., C. C. A., 171 8 Sharp v. U. S., C. C. A., 138 Fed. Fed. 366. 878. 3 Blake v. U. S., C. C. A., 71 Fed. 286. 4 Salla v. U. S., C. C. A., 104 Fed. 544; Ewing v. U. S., C. C. A., 136 Fed. 53; Van Gesner v. U. S., C. C. A., 153 Fed. 46; Thomas v. U. S., C. C. A., 156 Fed. 897; Whitehead v. U. S., C. C. A., 245 Fed. 385. 5 Ibid., infra, § 506d. 6 Brooks v. U. S., C. C. A., 146 Fed. 223; Whitehead v. U. S., C. C. A., 245 Fed. 385. See infra, § 506a. 7 Armour Packing Co. v. U. S., C. C. A., 153 Fed. 1. 9 Ewing v. U. S., C. C. A., 136 Fed. 53; Whitehead v. U. S., C. C. A., 245 Fed. 385. § 497b. 1 U. S. v. Moore, 11 Fed. 248; U. S. v. Nelson, 29 Fed. 202; U. S. v. Wood, 159 Fed. 187, against the master of a vessel for knowingly bringing a Chinese within the United States and landing or attempting to land him "in contravention of the provisions of this act." Act of Sept. 13, 1888, ch. 1015, § 9, 25 St. at L. 478, Comp. St. § 4310. 2 Shelp v. U. S., C. C. A., 81 Fed. 694. accurately and clearly defined without any reference to the exception, it need not be negatived thereto, but it is a matter of defense. There is no need of negativing an exemption.* Where the exception or proviso is in a subsequent clause to that defining the offense, or is in a subsequent statute, it need not be negatived.5 When fraudulent representations, which are averred, are collateral to the gist of the offense, which is the use of the mails in the execution of a fraudulent scheme, denials of the truth of fraudulent representation may be made by negative pregnant or conjunctively, or in literal negations. 8 1 § 497c. Allegations as to time in indictments. The indictment must allege the offense as of a day certain; 1 except in cases of misdemeanors and offenses of omission rather than of commission. In the case of a misdemeanor, an allegation of the commission "on or about" a specified date is sufficient.3 Allegations of time should be made with approximate accuracy; but, when they do not apparently bring the case within the bar of the statutes of limitations, and the crime is not one which must be committed after a certain date,5 or upon a certain day of the week, or in certain calendar months,6 or within a limited period, in which cases time is the essence of the offense and corresponding proof,8 thereof must be made, they are usually disregarded; even, it has been held, when they 3 U. S. v. Carney, 228 Fed. 163. 5 U. S. v. Moore, 11 Fed. 248; U. S. v. Nelson, 29 Fed. 202. 6 Horn v. U. S., C. C. A., 182 Fed. 721; Whitehead v. U. S., C. C. A., 245 Fed. 385, 389. See Hardwick v. U. S., C. C. A., 257 Fed. 505. 7 Whitehead v. U. S., C. C. A., 245 Fed. 385, 389: "Whatever may be the technical learning with reference to the negations in indictments for obtaining money by false pretention, Perjury, and like offenses, there is no Present occasion for its application.'' 8 Ibid. § 497c. 1 U. S. v. Gaag, 237 Fed. 728. 2 U. S. v. Smith, Fed. Cas. No. 16,338; U. S. v. Gaag, 237 Fed. 728. 3 Bryant et al. v. U. S., C. C. A., 257 Fed. 378, an indictment for seditious conspiracy. 4 U. S. v. Conrad, 59 Fed. 458. 5 U. S. v. Gaag, 237 Fed. 728. 6 Ibid.; Bishop's Criminal Procedure, I, § 399; a different date from that alleged in the indictment, if the same day of the week, may be proved. 7 U. S. v. Gaag, 237 Fed. 728. 8 Ibid. 9 U. S. v. Potter, 56 Fed. 83; Rieger v. U. S., C. C. A., 107 Fed. 916. "On principle, allegations of are inconsistent, and repugnant.10 A charge that an offense was committed "on the day" of a month and year named is not defective where any day of that month is prior to the finding of the indictment and within the period of limitation, unless time is of the essence of the offense.11 It has been held that an allegation that an overt act took place between two specified days is not proved by evidence of an act on the latter day, the word inclusive not having been used.12 Perjury need not be proved on the date laid in the indictment; 18 but when committed in reference to depositions, affidavits, or records, and the date of these differ from the date in the indictment they are construed to be different papers and there is a variance.14 Where a crime consists of several contemporaneous elements, the indictment must show that such elements coexisted.15 Since in the United States time is never designated by the year of the reign of an English King, the year may be described by arabic figures without the prefix A. D. or anno domini 16 The words "then and there" are not uncertain, nor repugnant because in one place they may refer to the whole of a day and in another to only one incident thereof.17 § 497d. Allegations of place in indictments. The indictment must show that the offense was committed within the district.1 time in criminal pleadings ought to be made with approximate accuracy; yet, by authority of a practice which has now continued so long that it must be yielded to, time need not be proved as stated and these allegations touching it are the most useless portions of criminal pleadings. U. S. v. Potter, 56 Fed. 83, 95, per Putnam, J.; Younge v. U. S. C. C. A., 242 Fed. 788; Fontana v. U. S., C. C. A., 262 Fed. 283; MacKnight v. U. S., C. C. A., 263 Fed. 833. 10 U. S. v. Jackson, 2 Fed. 502; Adams v. U. S., C. C. A., 246 Fed. 830. See supra, § 497. Contra, U. · S. v. Potter, 56 Fed. 83. 11 U. S. v. Conrad, 59 Fed. 458; U. S. v. Howard, 132 Fed. 325; Younge v. U. S., C. C. A., 242 Fed. 788. 12 U. S. v. Baker, 243 Fed. 746. 13 Matthews v. U. S., 161 U. S. 500, 40 L. ed. 786; affirming U. S. v. Matthews, 68 Fed. 880. 14 Ibid. 15 U. S. v. Simmons, 96 U. S. 360, 24 L. ed. 819. 16 Peters v. U. S., C. C. A., 94 Fed. 127, 36 C. C. A. 105. 17 U. S. v. Potter, 56 Fed. 83. See Shaw v. U. S., C. C. A., 165 Fed. 174. § 497d. 1 U. S. v. Marx, 122 Fed. 964; infra, § 525. |