therefor to be paid unless properly certified by the surveyor general in his official capacity, nor until approved plats and certified transcripts of the field notes should be filed in the general land office, and no payments to be made for surveys not executed by said Fitzpatrick in his own proper person. After alleging that said contract was on December 17, 1884, duly approved by the commissioner of the general land office, and that Fitzpatrick was officially noti fied thereof, the indictment, in the first count, then proceeds as follows:

"In pursuance of the aforesaid conspiracy, combination, confederacy, and agreement among them, the said defendants, made and entered into as aforesaid, to defraud the United States as aforesaid, and the said John A. Benson well knowing that the aforesaid contract had been made and entered into by and between the said John W. Fitzpatrick, United States deputy surveyor, as aforesaid, and the said W. H. Brown, United States surveyor general, as aforesaid, at the time and in the manner aforesaid, for a survey of the lands in the aforesaid contract and hereinbefore described, and full well knowing the terms and conditions of the said contract thereafter, (meaning after the 17th day of December, 1884,) and before the date next hereinafter mentioned, for the purpose and with the intent to effect the object of the aforesaid conspiracy, did cause and procure a fraudulent, fictitious, and pretended survey of the lands described in the aforesaid contract, and hereinbefore described, to be made; and he, the said John A. Benson, defendant herein, then and there well knowing said survey of the aforesaid lands, so caused and procured by him said John A. Benson to be made as aforesaid, had not been made in strict conformity with the laws of the United States, the printed manual of surveying instructions, and other instructions issued by the commissioner of the general land office; and he, the said John A. Benson, defendant herein, well knowing that the said John W. Fitzpatrick, United States deputy surveyor aforesaid, had not executed the said survey of the lands in the aforesaid contract, and hereinbefore described, in his own proper person, or at all; and he, the said John A. Benson, defendant herein, well knowing that said survey of the lands herein before described, so caused and procured by him, the said defendant, John A. Benson, to be made as aforesaid, was fraudulent, fictitious, and pretended,-for the purpose and with the intent of imposing upon and deceiving the said W. H. Brown, United States surveyor general aforesaid, in his official capacity aforesaid, and his (meaning the said W. H. Brown) successor in office in such official capacity aforesaid, should the said W. H. Brown for any cause cease to be such officer aforesaid; and for the purpose and with the intent of securing the approval of said pretended survey by the said W. H. Brown in his official capacity as United States surveyor general as aforesaid, and by his (meaning the said W. H. Brown) successor in office in such official capacity, should the said W. H. Brown for any cause cease to be such officer aforesaid; and for the further purpose of procuring the said W. H. Brown in his official capacity as United States surveyor general aforesaid, and his successor in office in such official capacity aforesaid, should the said W. H. Brown for any cause cease to be such officer aforesaid, to properly certify to the accounts and amount accruing to the defendant under and by the terms of the aforesaid contract; and for the further purpose of securing approved plats and certified transcripts of the field notes of said pretended survey to be filed in the general land office; and with the intent for the purpose of securing the payment from the United States of the contract price for said survey agreed to be paid under and by the terms of said contract made and entered into, as aforesaid, by and between the said John W. Fitzpatrick, United States deputy surveyor, and the said W. H. Brown, United States surveyor general, aforesaid; and with the intent to corruptly, wickedly, and unlawfully defraud the United States out of a large sum of money, to wit, the sum of twenty-five hundred dollars, the said John A. Benson, defendant herein, heretofore, to wit, on the 6th day of May, in the year of our Lord one thousand eight hundred and

eighty-five, at the city and county of San Francisco, state and district of California, and within the jurisdiction of this honorable court, did cause and procure false, fictitious, and fraudulent field notes of the aforesaid false, fictitious, and pretended survey to be made of the following lands in the aforesaid contract, and hereinbefore described, to wit:

"The retracing of the west boundary of Tp. (meaning township) 12 S., (meaning south,) R. (meaning range) 40 E., (meaning east;) the subdivision lines of Tp. (meaning township) 9 S., (meaning south,) Rs. (meaning ranges) 40 and 41 E., (meaning east;) Tp. (meaning township) 10 S., (meaning south,) Rs. (meaning ranges,) 40 and 41 E., (meaning east;) Tp. (meaning township) 11 S., (meaning south,) Rs. (meaning ranges) 40 and 41 E., (meaning east;) and Tp. (meaning township) 12 S., (meaning south,) Rs. (meaning ranges) 40 and 41 E., (meaning east,)-of the Mount Diablo base and meridian in the state of California, which said lands are more definitely described as follows, to wit: *

"And which said lands were public lands of the United States, and were and are situate within the district and state of California, which said false, fictitious, and fraudulent field notes represented that the aforesaid survey had been made by the said John W. Fitzpatrick, United States deputy surveyor, in his own proper person, whereas, in truth and in fact, the aforesaid survey had not been made by the said John W. Fitzpatrick, United States deputy surveyor, or otherwise, in his own proper person, or at all; and which said false, fictitious, and fraudulent field notes purported to be true field notes of the actual work done in the field in making the aforesaid survey of the lines of the lands in the aforesaid contract, and hereinbefore described, whereas, in truth and in fact, said field notes were not true field notes of the work actually done in the field; and which said false, fictitious, and fraudulent field notes represented that the aforesaid pretended survey of the lands last hereinbefore described had been made in strict conformity with the laws of the United States, and the printed manual of surveying instructions, whereas, in truth and in fact, the aforesaid survey had not been made in strict conformity with the laws of the United States, and the printed manual of surveying instructions, or in conformity therewith at all; and which said false, fictitious, and fraudulent field notes represented that all the corners of the aforesaid survey of the lands last herein before described had been established and perpetuated in strict accordance with the surveying manual of printed instructions, and in the specific manner therein described, whereas, in truth and in fact, all the corners of the aforesaid survey of the lands last herein before described had not been established and perpetuated in strict accordance with the surveying manual of printed instructions, and in the specific manner in the aforesaid field notes described; and which said false, fictitious, and fraudulent field notes represented and purported to be true field notes of the aforesaid pretended survey of the lands last hereinbefore described, whereas, in truth and in fact, they were not true field notes of the said survey, but, on the contrary, were false, fictitious, and fraudulent field notes of said survey,-all of which said defendants John A. Benson and M. F. Reilly then and ther: well knew.

"And so the jurors aforesaid, upon their oath aforesaid, do say that said defendants John A. Benson and M. F. Reilly, on the 17th day of December, in the year of our Lord one thousand eight hundred and eighty-four, at the city and county of San Francisco, state and district of California, and within the jurisdiction of this honorable court, did knowingly, unlawfully, corruptly, and wickedly conspire, confederate, combine, and agree together to defraud the United States of a large sum of money, to wit, the sum of twentyfive thousand dollars, and the unlawful and fraudulent acts, in manner and form, and by the defendants in this count hereinbefore set forth, were done to effect the object thereof.

"Against the peace and dignity of the United States of America, contrary to the form of the statutes of the United States of America, in such case made and provided.”

The second count is in all material particulars a repetition of the first, except that in specifying the overt acts commi.ted to effect

the object of the conspiracy it alleges, in substance, that the defendant Benson, on the 6th day of May, 1885, falsely pretending that the surveys had been properly made by Fitzpatrick according to said contract, and with knowledge to the contrary, with intent to impose upon and deceive the surveyor general, and for the purpose of fraudulently obtaining his official approval of said pretended survey, and procuring the surveyor general, in his official capacity, to certify fraudulent accounts for said pretended survey and amounts accruing to Fitzpatrick under said contract, and for the purpose of securing approved plats and certified transcripts of the field notes of said pretended survey to be filed in the general land office, and for the purpose of defrauding the United States by securing the payment to him (Benson) from the United States of the contract price for said survey, did make, and cause to be made, false, fictitious, and fraudulent field notes of said pretended survey, which falsely represented that said survey had been made by Fitzpatrick according to the contract, which false and fictitious field notes purported to be true field notes of the work as actually done in the 'field; and it is further alleged in this count that the surveyor general was by the said unlawful conspiracy of Benson and Reilly, and the fraudulent acts of Benson aforesaid, "deceived into approving the said pretended survey and the said fictitious and fraudulent 'field notes, and into stating and certifying the amounts accrued to and earned by the said John W. Fitzpatrick under and by the terms of the aforesaid contract."

The third count is a mere repetition of the second. I am unable to discover any difference between them except in phraseology.

In this proceeding, all defects in the indictment which are merely formal, and all clerical errors and omissions and defects not prejudicial to the defendant, must be disregarded. Section 1025, Rev. St. The defendants are not entitled to go free without a trial, if by a fair construction of the pleading, as a whole, it can be understood as charging them with commission of acts which are by a law of the United States made criminal and punishable, with a sufficient statement of the particular facts to identify the offense, and enable the court to judge whether the acts alleged amount to a crime in law. I will therefore notice only the most substantial and glaring defects in this indictment. It does not in either count aver that the defendants agreed to make any use whatever of the contract referred to, or of accounts or vouchers for money earned, or pretended to have been earned, by the contractor as a means of defrauding the United States. It does not in either count connect the contractor or the surveyor general with the conspiracy, or aver that by any assignment of the contract, or any accounts or vouchers for money earned under it, or any power of attorney, or other means, the defendants, or either of them, ever acquired control of the contract or any interest therein, or possession or control of any accounts, vouchers, or claims for money earned under it, or that they were ever so related to the contract as to have been able to commit a fraud in connection therewith. It does not in either count aver that the defendants ever agreed to any scheme or

plan of operation whereby a fraud upon the United States could possibly have been consummated. I do not assume that it was essential to the validity of this indictment that it should appear therefrom that the conspirators were to be the beneficiaries of the successful execution of their own agreement. This indictment fails to specify any scheme or attempt to do anything which could have resulted in the payment by the United States of money to the defendants, or either of them, or the contractor, or any other person. The full strength of the case to be gathered from all that is alleged in all the counts, disregarding all formal and technical defects and mere legal conclusions, is no more than this: That a contract was entered into by Fitzpatrick and the surveyor general for the state of California, whereby the former agreed to survey specified townships of the public lands of the United States, and return true field notes, within a specified time, for compensation to be computed at specified rates, to be paid to him only after completion of the work and approval thereof, and the filing in the general land office of approved plats and certified transcripts of the field. notes, and upon presentation of accounts for the amounts earned duly certified by the surveyor general, the work to be done by Fitzpatrick in person, and in his official capacity as a United States deputy surveyor; that Benson and Reilly knew of said contract and of all the terms and conditions thereof; that said contract was not executed; that Benson and Reilly knew that the surveys had not been made; that Benson, a stranger to the contract, for the purpose of deceiving the surveyor general and defrauding the United States, and with intent to secure payment to himself from the United States of the money payable under the contract, made a fictitious survey of said townships, and manufactured false field notes; that without co-operation of the contractor, and without personating him, Benson did, by such fictitious surveys and false' field notes, so deceive and impose upon the surveyor general that, without collusion on his part with Benson, he (the surveyor general) did approve such fictitious surveys and false field notes, and did certify accounts for money payable to Fitzpatrick under the contract. Upon this state of facts the government could not have been defrauded. Benson could not obtain money on such vouchers, because there was no money payable to him, and no false certificates for money payable to him were made or intended; and it is not pretended that it was his purpose to make any use of certified accounts for money payable to Fitzpatrick, and no money could be paid to Fitzpatrick upon the accounts so certified without his be coming a party to a crime by accepting the fruit of Benson's meddlesome acts, which is not to be presumed to have been contemplated, because not alleged. The indictment does not charge a conspiracy to defraud the United States by palming off fictitious surveys of public lands and false field notes as and for lawful surveys and genuine field notes. It only attempts to charge a conspiracy to defraud the United States out of a sum of money by acts and intents wholly inadequate for the purpose. There would be less difficulty in sustaining this indictment if it simply alleged that

the defendants conspired and agreed together to defraud the United States out of a specified sum of money, and that one of them, to effect the object, did the acts charged in this indictment to have been done by Benson, with like intentions, or any similar vain and impotent acts and intents, for the reason that this indictment, instead of charging a conspiracy or agreement to defraud which might have been afterwards developed and perfected by adoption of practicable means whereby to accomplish a fraud, is so framed as to limit the evidence admissible under it to such facts as might have a tendency to prove a conspiracy to defraud the United States out of a sum of money in the particular manner, and by the particular means, therein specified, which is equivalent to saying that the defendants conspired and agreed to do, and cause to be done, only such things as could not result in any fraud whatever, with the intent, however, of thereby perpetrating a fraud upon the United States. Greater effect must be given to a particular statement of facts repugnant to a general statement of a mere conclusion than to the general statement thus contradicted. This indictment itself negatives the only accusation of crime which it contains. In their endeavor to sustain the indictment, counsel for the government ignored the words, "by the means and in the manner following, that is to say," in that part of each count charging the conspiracy; and they cited text-books and decisions in support of their contention that an indictment which charges a conspiracy in the words of the statute or other words of equivalent import, and specifies any act done by the conspirators, or either of them, to effect the object, is sufficient. The words which I have quoted, however, are in the indictment. The use thereof necessarily limits by particularizing the charge made in general terms. The court cannot ignore them. But even the position taken by counsel is untenable. The authorities produced on their side are overborne by decisions which establish for all United States courts the rule that an indictment, to be valid, must tender an issue of fact by setting forth the acts constituting the particular crime which the grand jury intend to charge. This is consonant with the general rule of pleading under equity and code systems, requiring the facts constituting a cause of action to be stated. The words of a statute defining a crime are in most cases insufficient to describe an individual case, for the reason that the statute, being prospective, must employ broad and comprehensive terms, inappropriate to distinguish a single case from all others which may be prosecuted under it. In an opinion by Mr. Justice Jackson, the principle which I invoke is ably expounded, as follows:

"The act of July 2, 1890, on which the present indictment is based, in declaring that contracts, combinations, and conspiracies in restraint of trade and commerce between the states and foreign countries were not only illegal, but should constitute criminal offenses against the United States, goes a step beyond the common law, in this: that contracts in restraint of trade, while unlawful, were not misdemeanors or indictable at common law. It adopts the common law in making combinations and conspiracies in restraint of the designated trade and commerce criminal offenses, and creates a new crime in making contracts in restraint of trade misdemeanors, and in