
    UNITED STATES v. PEDRO ARCE.
    San Juan,
    Criminal,
    No. 2972.
    Criminal Law.
    Porce — Necessary Averment.
    Where the language of an act of Congress creates an offense- and provides that such offense shall exist if the act be violated forcibly, the omission of the adverb- “forcibly” from the indictment requires the court to direct the jury to render a verdict of not guilty and dismiss the case.
    Opinion filed December 1, 1922.
    
      Mr. Ira E. Welhj United States District Attorney, for United States.
    
      
      Mr. B. F. Sauckez for defendant.
   OdliN, Judge,

delivered tbe following opinion:

At tbe close of tbe testimony offered by tbe government in tbis case tbe attorney for tbe defendant moved the court to direct tbe jury to render a verdict of not guilty and to dismiss, tbis case.

It appears that tbe indictment was prepared in order to charge tbe defendant Avith violating § 65 of tbe New Criminal Code and tbe provisions of tbis § 65 are in substance the provisions of former § 5447. Tbe language of § 65 makes it a felony if any person shall forcibly assault, resist, oppose, prevent, impede, or interfere with any officer of the customs or of the internal revenue, etc.

Tbis indictment charges that tbis defendant did wilfully, knowingly, unlawfully and feloniously resist, oppose, impede, and interfere with a certain customs inspector, etc.

Tbis court cannot say that a charge of wilfully, or knowingly, or unlawfully, or feloniously interfering with a customs inspector is indictable, taken in connection with tbe plain, clear language of § 65. Tbe absence of tbe adverb “forcibly” from tbe indictment and tbe presence of said adverb “forcibly” in tbe law obliges me to grant tbe motion of counsel for the defendant.

Done and Ordered in open court tbis 1st day of December,. 1922.  