Page:Federal Reporter, 1st Series, Volume 1.djvu/59

TJSITBD BTATE8 V. GOaOnT. 6} �îs that any objection to an indictment which would be good upon demurrer, is fatal on motion in arrest, and this being 80, the objection to the indictment, if well grounded in law, may be as well taken at the present stage of the proceedinga as by motion to quash. In the case of the U. S. v. Watkins, 3 Cranch, Cir. Ct. Rep. 441, the court had occasion to state the rule with reference to certainty in alleging frauds in a case of false pretences, and it was there held that an indictment charging fraud should aver the means by which the fraud was effected; that fraud is an inference of law from certain facts, and the indictment must aver ail the facts which constituted the fraud ; that whether an act has been fraudulently done is a question of law, so far as the moral character of the act is in- volved. To aver that an act was fraudulently done is, theref ore, to aver a matter of law and not a matter of fact. (See pages 456, 457, 458 and 459.) It is true that this was a case of false pretences, and there may be a well grounded distinction, as arged by the leamed counsel for the United Utates, betweon such a case and the case in hand ; because, in a eaise of false pretences, it is undoubtedly essential that the f^i^ts and eir- cumstanceg should be alleged with S'uch certainty that the court may sce upon the face of the ploadmg that tàe pretences were false, and that they were of sueh character, and were made under such circumstances, as oonstii-ute fiJse pretences within the meaning of the criminal law-j that they were r,9- lied upon, aeted upon, and that the party defrauded had a right to rely upon them; and herein, and perhapa in some other respects, such a case is distinguishable from the precise question which we bave in the case at L-ar. But it is un- doubtedly a Sound principle that an indictment charging fraud of any sort ought to aver, with requisite particularity, wherein the fraud consisted, and the means by which it was eiïected, and I bave been unable to find any case which dis- penses with the application of this rule. It is true that many of the niceties and technicalities with reference to form in criminal pleading which once existed are not allowed now to prevail, but I do not understand that there has been any relaxation of the rule with relurcMce to certainty and clear- ��� �