receiver or other person having moneys of the United States in charge, he shall be deemed guilty of embezzlement of the moneys not so safely kept.

While this section, upon its face, purports to apply only to the Treasurer, assistant treasurers, and public depositaries, yet by section 92 the provisions of each of the foregoing sections are made applicable to all persons charged with the safe-keeping, transfer, or disbursement of the public money, whether such persons be indicted as receivers or depositaries of the same.

Section 92 is identical with section 5493, Revised Statutes, while the five preceding sections are in substance the same as sections 5488 to 5492, Revised Statutes; and, if there could otherwise be any doubt that it was intended by section 5493 to make each of the preceding sections applicable to all officers and United States officials whose duty it is to receive, hold, and disburse public moneys, that doubt would be removed by section 23, chapter 36, of the act of February 8, 1875 (18 Stat. 312), which provides:

"That all acts and parts of acts imposing fines, penalties, or other punishment for offenses committed by an internal. revenue officer or other officer of the Department of the Treasury of the United States, or under any bureau thereof, shall be, and are hereby, applied to all persons whomsoever employed, appointed, or acting under the authority of any internal revenue or customs law, or any revenue provision of any law of the United States, when such persons are designated or acting as officers or deputies, or persons having the custody or disposition of any public money."

Does, then, the specification under the first charge allege such facts as constitute the offense of embezzlement, and does the finding of the court render the accused, as a matter of law, guilty of that offense?

Embezzlement, under said section 88 of the Penal Code, consists in the officer's failure to safely keep the moneys intrusted to his care, and, as above shown, it is specifically alleged in the specification under the first charge that the accused did fail to safely keep and account for the sum of $2,873.

Without here undertaking to pass upon the necessity of a fraudulent or criminal intent or knowledge upon the part of the accused, it is sufficient to say, that if such intent or knowledge were necessary, their absence, under the positive provisions of this statute, would be a matter of defense, and it would not be necessary to specifically declare their presence in the specification. The rule might be different as to an indictment found in criminal proceedings: in a court of law, but all the technicalities which have been applied to common-law indictments are not required in specifications in court-martial proceedings. Here it is sufficient if the facts constituting the offense be described with such certainty as to clearly inform the accused of his alleged misconduct and of the offense with which he is charged. (7 Op. 605.)

The principal question is, whether or not the findings of the court-martial constitute, as a matter of law, the offense of embezzlement. By the prosecution it is insisted that the failure of the accused to safely keep the money intrusted to his care of itself constitutes the offense, and that it was not necessary that any willful knowledge or evil intent as to the disposition of the money be proven; while for the defense it is insisted that before an accused can be found guilty of embezzlement, it must appear that his failure to account for the money was the result of some intent to defraud the Government, or, at least, of some act willfully and knowingly done, which the accused knew would cause the loss of the money.

Many authorities may be found to support both contentions. A number of the cases supporting the theory of the prosecution are cited in the opinion of the Circuit Court, in United States v. Bayaud (16 Fed. 376, 384, 385), wherein it was held that under the statute which required the destruction of stamps taken from a cask containing distilled spirits, the accused is bound to know the facts and obey the law at his peril, and that a conviction may be had without charging in the indictment a knowledge of the contents of the cask from which the stamps were removed. Many of the same authorities and others of like character are cited in 1 Wharton Criminal Law (7th ed.), sec. 83, and in note 4, 3 Greenleaf on Evidence (16th ed.), sec. 21.

Extreme cases are United States v. Adler (Fed. Case No. 14424), wherein it was held that a person engaged in rectifying, whose employees empty spirits from casks and packages, is one who causes such emptying, so as to be guilty of a felony, although he may not be present or have any personal knowledge as to the emptying or intention to empty.

Regina v. Woodrow (15 Meeson & Welsby, 404), where the accused was found guilty of having in his possession adulterated tobacco, when it was found as a fact that he had purchased the tobacco under the belief that it was unadulterated, and had no knowledge of its adulteration until it was analyzed by the government authorities; and

Com. v. Thompson (11 Allen, 23), in which it appeared that a woman married and lived a short while with her husband, but was compelled to leave him on account of his dissipated habits. She afterwards read in a newspaper of a man being killed in a drunken row whom she had every reason to believe, and did believe, was her husband, and she thereafter represented herself to be a widow. Eleven years after she last saw or heard of her husband she married another man. It developed that the first husband was not, in fact, dead, and the second husband was thereupon indicted and found guilty of adultery for cohabiting with the woman under the second marriage.

On the other hand, it is said in Bishop's New Criminal Law (8th ed.), vol. 1, sec. 287:

"There can be no crime, large or small, without an evil mind. In other words, punishment is the sequence of wickedness, without which it can not be. And neither in philosophical speculation, nor in religious or moral sentiment, would any people in any age allow that a man should be deemed guilty unless his mind was so. It is therefore a principle of our legal system, as probably it is of every other, that the essence of an offense is the wrongful intent, without which it can not exist."

And, further, in section 291:

"Though we sometimes find judges inconsiderately making exceptions to this doctrine, in the just truth of the law it is universal. If a case is really criminal, if the end sought is punishment and not the redress of a private wrong, no

circumstances can render it just, or consistent with a sound jurisprudence, for the court or a jury to condemn the defendant unless he was guilty in his mind. As the laws of the material world act uniformly, never knowing exceptions, so do those of the moral world. It is never right to punish a man for walking circumspectly in the path which appears to be laid down by the law, even though some fact which he is unable to discover renders the appearance false. And for the government, whether by legislation or by judicial. decree, to inflict injustice on a subject, is to injure itself more than its victim. And a court should in all circumstances so interpret both the common law and the statutes as to avoid this wrong."

And note 6, section 303a, paragraph 3, page 174, contains an elaborate discussion of the question, in which the author cites and analyzes many of the decisions cited holding to the contrary; and argues with force that into every legislative act creating an offense, there must, as a matter of necessity, be read some exceptions; as, for illustration, while criminal statutes do not declare that their provisions shall not apply to insane persons or to infants under seven years of age, yet, in construing these acts, such exceptions are always implied; and that, in like manner, a criminal statute should be so construed as to require an evil intent, even though such intent be not required by express language.

As favoring this view may be cited Dimmick v. United States (121 Fed. 638, 643), wherein the accused had been indicted for embezzlement for failure to deposit money as required by section 5491, Revised Statutes (Penal Code, sec. 90). It was contended in the Court of Appeals that the trial court erred in refusing to instruct the jury that the accused should be acquitted if he had no notice or knowledge that he was required to deposit the money on December 31, 1900, and with reference thereto the court said:

"The court properly instructed the jury on this branch of the case, and charged them that, in order to hold the plaintiff in error guilty of a violation of the statute, they must find that his failure to deposit was intentional and

willful, and in that connection the court read to the jury the section of the statute under which the indictment was found."

In United States v. Ninety Nine Diamonds (139 Fed. 961, 966, et seq.), the diamonds had been seized under the statute making it an offense to make, or attempt to make, any entry of imported merchandise by means of any false or fraudulent invoice, affidavit, or otherwise, and authorizing the forfeiture of the goods under such circumstances. The Court of Appeals, Eighth Circuit, held that the "false and fraudulent" in statutes and contracts which impose forfeitures or penalties for false acts or acts falsely done, generally imply culpable negligence or wrong, and that:

"They signify more than incorrect or incorrectly, and mean knowingly or intentionally or negligently false or falsely, in the absence of express provisions in the statutes or contracts themselves, or reasonable implications from them, their subjects, and the circumstances to the contrary (p. 968);" and in support of this position cited cases decided by numerous courts, both federal and state.

It

A question of a similar nature was presented to the Supreme Court of the United States in Armour Packing Co. v. United States (209 U. S. 56, 85, 86), wherein the appellant had been convicted for receiving a rebate. was insisted that there was nothing in the facts to show any intentional violation of the law, but that on the contrary, the petitioner believed that it was within its legal rights in insisting upon the performance of its contract, and maintained in good faith that the interstate commerce act did not and could not interfere with it. Upon this subject the court said:

"While intent is in a certain sense essential to the commission of a crime, and in some classes of cases it is necessary to show moral turpitude in order to make out a crime, there is a class of cases within which we think the one under consideration falls, where purposely doing a thing prohibited by statute may amount to an offense, although the act does not involve turpitude or moral wrong. In this case the statutes provide it shall be penal to receive