
    UNITED STATES v. JOHNSON.
    Criminal Law; Perjury; Criminal Procedure; Verdict, Defects Cured by; Indictment; Civil Service.
    1. Making and swearing to an application to the United States Civil Service Commission for examination for appointment in the civil service, containing wilfully false statements, is indictable under U. S. Rev. Stat. sec. 5479 (U. S. Comp. Stat. 1901, p. 3696). (Following Johnson v. United States, ante, p. 128.)
    2. A charge in an indictment must be made directly, and not- inferentially or by way of recital, and the indictment must be free from all ambiguity. (Following Tyner v. United States, 23 App. D. C. 324.)
    3. Where an indictment under section 5479, U. S. Rev. Stat. for falsely maKing and forging an application to the United States Civil Service Commission for examination for employment in the civil service,charged the accused, by implication only, with making a false answer to a question in the application, a motion by the accused in arrest of judgment is properly granted, even though it may be said that the effect of the charge in the indictment is sufficiently clear to be unmistakable to the ordinary intelligence; and such a defect is not cured by verdict, where a demurrer to the count containing it was overfilled.
    No. 1542.
    Submitted October 4, 1905.
    Decided November 8, 1905.
    Hearing on an appeal by tbe United States from an order of tbe Supreme Court of tbe District of Columbia sustaining a motion to arrest a judgment upon a verdict in a prosecution for tbe alleged violation of section 5479, U. S. Eev. Stat.
    
      Affirmed.
    
    Tbe facts are sufficiently stated in tbe opinion.
    
      Mr. J. 8. Easby-Smiih, Special Assistant United States Attorney for tbe District of Columbia, for tbe appellant.
    
      
      Mr. D. W. Balcer, Mr. M. F. Mangan, and Mr. F. J. Hogan for the appellee.
   Mr. Justice Duele

delivered the opinion of the Court :

This appeal is taken by the United States from an order of the supreme court of the District of Columbia sustaining a motion to arrest a judgment on a verdict rendered in the above-entitled cause.

The record discloses that the appellee, Stephen U. G. Johnson, was indicted and tried for an alleged violation of section 5479 of the Revised Statutes of the United States (U. S. Comp. Stat. 1901, p. 3696). The indictment contained two counts, the first of which is alone to be considered, for the reason that a verdict of not guilty was found as to the first count.

A demurrer to the indictment was filed before issue joined and overruled.

In passing, it may be noted that at the same term of the court at which the indictment now before us was found, another indictment against Johnson was found for perjury in the execution of the affidavit, the forgery of which is the basis for the indictment now under examination. The trial of that indictment resulted in Johnson’s conviction, and, upon appeal, that conviction has been affirmed at the present term of this court (Johnson v. United States, ante, p. 128). It was admitted by counsel for appellant, upon the hearing of this appeal, that an affirmance of that judgment would not be followed by an additional sentence, should the court sustain the appeal herein.

An examination of the first count of the indictment discloses that it sets forth that Johnson was desirous of obtaining employment as a postal letter carrier in the Washington City Postoffice Department, and that, to obtain such employment, it was necessary, under the civil service act of January 16, 1883, for him to make application in writing to the United States Civil Service Commission and be by said commission examined as to his qualifications in the premises: that it was required by the rules promulgated by the commission, pursuant to law, that Johnson, in the manner prescribed by the commission, and upon a blank form furnished, answer certain questions touching his qualifications ; that the application as completed should be sworn to before a' duly qualified officer, whose certificate should be attached thereto, and then, by Johnson, forwarded and presented to the commission; that Johnson, having filled in the answers to the questions set forth on the blank form, executed the application in the manner prescribed, “and that the material questions and answers aforesaid had reference, among other things,- to whether said Johnson had ever been employed in the government civil service of the said United States, and to whether, if said Johnson had been employed in said service, said Johnson had been discharged from said service, or had resigned from said sendee.”

The indictment further charges that Johnson, well knowing that he had been employed in said government civil' service and had been discharged from said civil service, did “unlawfully and knowingly falsely make and forge” the said application, “and did then and there present the same at the office of said United States Civil Service Commission * * * for the purpose of deceiving said commission, * * * and for the purpose of defrauding the said United States.” The application referred to is set out in full. An inspection discloses that it contains twenty questions, several of them subdivided, to all of which answers were made. The following were the grounds upon which the motion for arrest of judgment was based:

“1. That the first count in said indictment on which said defendant was' convicted does not charge an offense under the laws of the United States.

“2. That said count attempts to charge defendant with falsely making and forging a certain application, but that said indictment fails to'state wherein'said application was falsely made and forged.

“3. That said application alleged to have been falsely made and forged is not a declaration or statement required by any law of the United States to be made, and, therefore, is not a declaration or statement within section 5479 of the Revised Statutes of the United States.

“4. That there is no law or valid rule promulgated by the Civil Service Commission which required the certain facts set up in said indictment to be a part and parcel of said application.”

It will be unnecessary to consider any of the grounds save the second, which was the one mainly discussed by counsel for the respective parties. The third and fourth grounds were not well taken, and the same objections were held bad in Johnson v. United States, supra. If the first ground is intended to assert that forgery, when properly alleged, of an application for examination under the civil service law and valid rules is not an offense covered by section 5479 of the Revised Statutes, the objection is not well taken under the decisions in analogous cases. Curley v. United States, 64 C. C. A. 369, 130 Fed. 1; Johnson v. United States, supra. If, on the other hand, it means that no offense is charged because not properly set forth, then it is covered by the second ground upon which the motion was based.

That particularity and certainty are required in indictments is the. well-settled rule of law applicable to the subject. “The indictment must be free from all ambiguity.” Evans v. United States, 153 U. S. 584, 38 L. ed. 830, 14 Sup. Ct. Rep. 934. Equally true is it that the charge must be made directly, and not inferehtially, or by way of recital. United States v. Hess, 124 U. S. 483, 31 L. ed. 516, 8 Sup. Ct. Rep. 571; Tyner v. United States, 23 App. D. C. 324.

Measured by these standards, we think the indictment was fatally defective. We have seen that the appellee was called upon to answer many questions, and, if the offense alleged is considered to lie in a false answer to one or more of these questions,, the indictment, if good as to one false answer, is good as to all false answers. The mere statement of the indictment that one answer was false, which statement is a mere recital, does not free the indictment from ambiguity. That the forgery consisted in such alleged false answer is not directly charged, and at the best can only be spelled out. It is a mere inference. Reading the indictment in connection with the statute, one would naturally infer that the name of the notary had been forged. Counsel for appellant admits that it is only by implication that the indictment charges that the recited answer was in fact false, and adds that, “although the charge is indirect and inferential,” the effect is sufficiently clear as to be unmistakable to the ordinary intelligence. We think that it would be an unsafe rule to lay down that an indictment is good or bad according to the degree of the intelligence of the indicted person or his attorney.

By reason of our decision sustaining the judgment in the other case against Johnson, the question to be here determined is of little or no importance to the parties to this case, and further discussion becomes unnecessary.

In conclusion, it may be said that the defect in the indictment was not cured by the verdict, for the reason that the demurrer to this count was overruled, which takes the case outside section 1025 of the Revised Statutes (U. S. Comp. Stat. 1901, p. 120). Moore v. United States, 160 U. S. 268, 40 L. ed. 422, 16 Sup. Ct. Rep. 294. It follows that there was no error by the court below in granting the motion in arrest of judgment, and therefore its decision should be affirmed. And it is so ordered.  