[United States v. Mills.] States v. Goodin, 12 Wheat. 466, 474, it is submitted that the indictment may be sustained. Upon English authorities it is sufficient to lay the offence in the words of the law. 2 East's Pl. Cr. 781; 2 Leach, Crim. Cases, 578; 5 T. R. 33. 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 into *141] 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 forbidden, 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 misdemeanor, 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 *142] which he, the said Joseph I. Straughan, 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 [United States v. Mills.] 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 divison is, 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 [*143 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 [United States v. Mills.] 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. 106 *MARTIN PICKETT'S HEIRS, PLAINTIFFS IN ERROR, V. SAMUEL LEGERWOOD ET AL. The court refused to quash a writ of error on the ground that the record was not In the circuit court for the district of Kentucky, a judgment in favour of the plain- IN error to the circuit court of the United States for the district of Kentucky. In the circuit court of Kentucky, at November term, 1831, the defendants in error, Samuel Legerwood, Hugh Roseberry, William Henderson, William Mitchell and John Graves, filed a petition, stating that in 1796 a certain Martin Pickett brought his action of ejectment in the district court of the United States of the Kentucky district, against William Mitchell and William Maxwell. That the petitioner, Samuel Legerwood, under whose father and testator William Legerwood, the said defendants who were tenants claimed, was, with the said tenants, made defendant; and in 1798 a judgment was obtained in the said court in favour of Pickett, but no writ of possession was executed in favour of Pickett. The demise in the declaration was laid at ten years, and expired in 1806, and [*145 remained dead and inoperative for nearly twenty-five years, when, before the spring term of the court, in 1830, a notice was served by the attorney for the devisees of Martin Pickett on William Mitchell, that the court would be moved to amend the demise by inserting a new one; and on the sixth day of the term he procured an order to be made, inserting a demise of fifty years, without the knowledge of any person interested in the said land at that time, which ex parte order was not discovered until one year after. That a writ of possession was then, at the time of filing the petition, in the hands of the marshal, and he was about to take possession of the said land. The petition proceeds to set forth the title under which William [Pickett's Heirs v. Legerwood et al.] Legerwood, the father of Samuel Legerwood, claimed the land, against the title set up by Martin Pickett. That William Mitchell, one of the defendants in the suit, was a tenant of part of the land; that the tract of Legerwood was, several years after the judgment in ejectment, sold by an execution in favour of the devisees of Pickett, and was bought by Thomas Starke, to whom the sheriff conveyed the same; to whom also William Mitchell, the said defendant, sold out his interest in the land, and moved away nearly one hundred miles from the land; and has not for many years been a tenant of it. This fact is alleged to have been well known to the attorney for the devisees of Pickett; and that Mitchell, having no interest in the same, gave no information of the intended motion to the rest of the petitioners, who are terre tenants. The petition proceeds to state sundry conveyances and devises of the land under which the parties to the petition all became owners or claimants of the same, or possessors thereof, before the said motion to amend the demise, and the notice of the same William Mitchell. The petitioners Henderson, Graves and Roseberry say they are exclusive terre tenants, and, as such, were entitled to notice, even if the judgment was to be revived by scire facias; and that Mitchell had not been a terre tenant for upwards of ten or twelve years, and had no interest therein. That Samuel Legerwood has never been a *146] terre tenant, but was entered defendant for those claiming under the title of his deceased father, and that Maxwell has abandoned the possession, and has been dead for many years. The petition prays the court to award a writ of error coram vobis, to reverse and annul the order extending the demise, and to quash the impending writ of habere facias possessionem; and for such other relief as the case requires. The circuit court ordered an injunction to stay proceedings on the habere facias and on the 26th November, 1831 the following judgment was entered: The court being now sufficiently advised of and concerning the premises, do consider that the plaintiff's writ of error coram vobis, be sustained; that the order extending the demise in the declaration of Seekright, on demise of Pickett against Mitchell, &c., be set aside, and the habere facias which issued thereon be quashed; and that the plaintiffs recover of the defendants their costs herein expended." From this judgment the plaintiffs in error, on the 28th of November, 1831, prosecuted a writ of error to this court. The citation is dated of the 28th November, 1831, and required the defendants in error to appear at the January term, 1832, of this court. The record brought up by the writ of error, was filed in June, 1832. Mr. Loughborough, for the defendants in error, moved to quash the writ of error on the following grounds. 1. Because, although the writ of error was returnable to January term, 1832, of this court, the record was not filed until June 1832, the term of January, 1832, having thus intervened. |