Page:Federal Reporter, 1st Series, Volume 10.djvu/885

 united states v. bartow. 678 �United States v. Bartow.* {Gireuit Court, 8. D. New York. February 18, 1882.) �1. Indictment UTfDER SECTION 5392, Rbv. St.— Perjury — Bank Oppicer's Re- �port. �The oath of a cashier of a national bank, in a report to the comptroller of the currency, is a declaration within the meaning of section 5392, Rev. St.; «s such report, so verified, is required by the provisions of section 5211. �2. Same — Same— Same— Certaiktt of Pleading. �Where the indictment contained the averment that such report was " made to the comptroller of the currency, and verifled, as aforesaid, aa by law required," hdd, upon a motion to quash, that such averment was sufflciently certain to sustain the indictment. �Benbdiot, d, J. This case cornes before the court upon a, motion to quash made after plea. It cannot, therefore, prevail unless the insuiEciency of the indictment is so palpable as to satisfy the mind that no judgment can be rendered in case of conviction. The offence sought to be charged is the offence created by section 5392 of the Revised Statutes. The act charged is the verification of a report of the condition of the National Bank of Fishkill by the accused as cash- ier of such association, The method of framing the indictment is far from satisfactory. Still, I think it not impossible to consider the lan- guage employed sufiScient after verdict to sustain a finding that the accused took an oath that a report of the condition of the National Bank of Fishkill subscribed by him is true, and wilfully and contrary to his oath stated in such report material matter which he did not believe to be true, Such a report is, in my judgment, a declaration within the meaning of section 5392. �The laws of the United States, § 5211, require every national bank to make to the comptroller of the currency not less than five re- ports during each year, according to the form which may be prescribed by him, verified by the oath or affirmation of the president or cashier of the association. In this indictment there is no specifie averment that the report in question was made in pursuance of a request or requirement of the comptroller, or according to a form prescribed by the comptroller ; nor is there any averment that the comptroller ever requested a report from the National Bank of Fishkill, Because of this omission it is said that no offence is charged, inasmuch as the offence created by section 5392 can only be committed in a case in which a. law of the United States authorizes an oath to be administered. �•Reported by S. Nelson White, Esq., of the New York bar. ��� �