
32 U.S. 138 (____)
7 Pet. 138
THE UNITED STATES,
v.
JOHN B. MILLS.
Supreme Court of United States.

*140 The case was argued for the United States by the attorney-general, Mr Taney; no counsel appeared for the defendant.
Mr Justice THOMPSON delivered the opinion of the Court.
The defendant was indicted in the circuit court of the United States for the district of North Carolina, under the twenty-fourth section of the act of 1825, entitled "an act to reduce *141 into one, the several acts establishing and regulating the post office department" (7 Laws U.S. 377), which declares "that every person, who, from and after the passing of this act, shall procure and advise, or assist in the doing or perpetration of any of the acts or crimes by this act forbiden, shall be subject to the same penalties and punishments as the persons are subject to who shall actually do or perpetrate any of the said acts or crimes, according to the provisions of this act." Upon the trial the defendant was convicted of the offence charged in the indictment, and a motion was made in arrest of judgment, upon which motion the judges were opposed in opinion, and the case comes here upon the following certificate:
"The defendant was indicted upon the twenty-fourth section of the act of congress, approved the 3d of March 1825, entitled "an act to reduce into one, the several acts establishing and regulating the post office department," for advising, procuring and assisting one Joseph I. Straughan, mail carrier, to rob the mail, and, being found guilty, submitted a motion in arrest of judgment: one reason in support of which motion was, that the indictment did not sufficiently show any offence against the said act, because the same did not directly charge or otherwise aver, that the said Joseph I. Straughan did actually rob the mail; and upon argument the judges were opposed in opinion upon this question, to wit, whether an indictment grounded upon the said statute, for advising, &c. a mail carrier to rob the mail, ought to set forth or aver, that the said carrier did in fact commit the offence of robbing the mail, and therefore the judges directed the same to be certified to the supreme court.
The offence charged in this indictment is a misdemeanour, where all are principals; and the doctrine applicable to principal and accessary in cases of felony does not apply. The offence, however, charged against the defendant, is secondary in its character; and there can be no doubt, that it must sufficiently appear upon the indictment, that the offence alleged against the chief actor had in fact been committed.
The first count in the indictment alleges that the defendant did, at the time and place therein mentioned, procure, advise and assist Joseph I. Straughan to secrete, embezzle and destroy a letter with which he, the said Joseph I Straughan *142 was entrusted, and which had come to his possession, and was intended to be conveyed by post, &c., containing bank notes, &c. He, the said Joseph I. Straughan, being at the time of such procuring, advising and assisting, a person employed in one of the post office establishments, to wit, a carrier of the mail, &c., contrary to the form of the act of congress in such case made and provided.
The second count in the indictment sets out the particular letter secreted, embezzled and destroyed, containing bank notes amounting to sixty dollars.
The offence here set out against Straughan, the mail carrier, is substantially in the words of the statute, second section. If any person employed in any of the departments of the post office establishment, shall secrete, embezzle or destroy any letter, packet, bag, or mail of letters with which he shall be entrusted, or which shall have come to his possession, and is intended to be conveyed by post, containing any bank note, &c., such person shall, on conviction, be imprisoned, &c.
The general rule is, that in indictments for misdemeanours created by statute, it is sufficient to charge the offence in the words of the statute. There is not that technical nicety required as to form, which seems to have been adopted and sanctioned by long practice in cases of felony, and with respect to some crimes, where particular words must be used, and no other words, however synonymous they may seem, can be substituted. But in all cases the offence must be set forth with clearness, and all necessary certainty, to apprise the accused of the crime with which he stands charged.
And we think the present indictment contains such certainty, and sufficiently alleges, that the offence had, in point of fact, been committed by Straughan. It charges the defendant not only with advising, but procuring and assisting Straughan to secrete and embezzle, &c. This necessarily implies that the act was done; and is such an averment or allegation, as made it necessary on the part of the prosecution to prove that the act had been done.
The particular question put in the certificate of division is, whether an indictment, grounded upon the said statute for advising, &c. a mail carrier to rob the mail, ought to set forth or *143 aver that the said carrier did in fact commit the offence of robbing the mail. The answer to this, as an abstract proposition, must be in the affirmative. But if the question intended to be put is, whether there must be a distinct, substantive and independent averment of that fact, we should say it is not necessary, and that the indictment in this case sufficiently sets out that the offence had been committed by Straughan, the mail carrier; and that no defect appears in the indictment for which the judgment ought to be arrested.
A certificate to this effect must accordingly be sent to the circuit court.
This cause came on to be heard on the transcript of the record from the circuit court of the United States for the district of North Carolina, and on the question and point on which the judges of the said circuit court were opposed in opinion, and which was certified to this court for its opinion, agreeably to the act of congress in such case made and provided, and was argued by counsel: on consideration whereof, it is the opinion of this court that the indictment in this case sufficiently sets out that the offence had been committed by Straughan, the mail carrier; and that no distinct, substantial and independent averment of that fact was necessary, and that there is no sufficient cause for arresting the judgment: whereupon it is adjudged and ordered by this court, that it be certified to the said circuit court that the indictment in this case sufficiently sets out that the offence had been committed by Straughan, the mail carrier, and that no distinct, substantial and independent averment of that fact was necessary, and that there is no sufficient cause for arresting the judgment.
