"spurious Treasury notes" are repugnant to each other, and impossible of proof in the same transaction. The true test of the sufficiency of an indictment is whether it contains every element of the offense intended to be charged, and sufficiently apprises the defendant of what he must be prepared to meet. Cochran and Sayre v. United States, 157 U. S. 286, 290, 15 Sup. Ct. 628, 39 L. Ed. 704. And when the statute enumerates several acts in the alternative, where all are punishable by the same penalty, they may all be charged conjunctively as one offense in one count, and such charges are 't repugnant, either in themselves, or in the punishment therefor. State v. Flint, 62 Mo. 393; Wharton's Criminal Pleading & Practice, 52, 251, and cases cited. But where two inconsistent offenses, requiring different punishment, are introduced into one count, judgment may be arrested; and, where there is repugnancy between the material averments of an indictment in a single count, it will vitiate said count. 18 Encyclopedia of Pleading & Practice, p. 742; 10 Id. p. 536; Wharton's Criminal Pleading & Practice, § 255. It is essential that the charge should not be repugnant or inconsistent with itself, for the law will not permit of absurdity and contradiction in legal proceedings. I Chitty, Criminal Law, p. 231. Repugnancy consists in two inconsistent allegations which destroy the effect of each other. 10 Encyclopedia of Law, 565. While it is permissible thus to charge different offenses in different counts, it is not admissible to charge them in a single count. Illustrations of such repugnancy are where an indictment charges the defendant with having forged a certain writing whereby one person was bound to another, in which it is said the whole will be vicious, for it is impossible that any one can be bound by forgery. 1 Chitty, Criminal Law, 231. So, also, an indictment which charged that the defendant disseised J. S. of lands, wherein it appears from the indictment itself that he had no freehold whereof he could be disseised, was held to be repugnant. 18 Encyclopedia of Pleading & Practice, 742; I Bishop's New Criminal Procedure, § 490. Where an indictment charged an offense to have been committed in 1801, and also in 1830, it was held to be repugnant. But where a statute makes several distinct and substantive offenses indictable, each one of which may be considered as representing a phase of the same offense, it has been frequently held that they can be coupled in one count. Wharton's Criminal Pleading & Practice, 251.

There is considerable authority to the effect, also, that where the contradictory or repugnant matters do not enter into the substance of the offense, and the indictment will be good without them, they may be rejected as surplusage; or where the repugnant matter is simply inconsistent with the preceding averments, it may also be rejected as surplusage (State v. Flint, supra); and that where the objectionable words are not contradicted by anything which goes before, but are merely irreconcilable with some subsequent allegation, they cannot be thus rendered neutral. I Chitty, Criminal Law, § 231. In Rex v. Stevens, 5 East, 260, Lord Ellenborough says, concerning repugnancy, as follows:

"If the sense be clear, nice exceptions ought not to be regarded, in respect of which Lord Hale (2 Hale's P. C. 193) says that 'more offenders escape

by the overeasy ear given to exceptions in indictments than by their own innocence, and many heinous and crying offenses escape by these unseemly niceties, to the reproach of the law, to the shame of the government, and to the encouragement of villainy and the dishonor of God.'"

We think, within the rule as stated above, that these allegations are not necessarily repugnant. The evidence already considered sufficiently shows a conspiracy to perpetrate a fraud, to be consummated by the delivery of spurious notes, or some other article, or both. It was impossible to determine in advance by which of these modes the accused proposed to consummate this fraud. There would have been nothing necessarily inconsistent with his previous conduct if he had delivered packages containing both spurious notes and pieces of blank paper. In such case the evidence would have sustained the charges of said counts in one transaction.

Section 1025 of the Revised Statutes of the United States [U. S. Comp. St. 1901, p. 720] provides as follows:

"No indictment found and presented by a grand jury in any district or circuit or other court of the United States shall be deemed insufficient, nor shall the trial, judgment, or other proceedings thereon be affected by reason of any defect or imperfection in matter of form only, which shall not tend to the prejudice of the defendant." United States v. Chase (C. C.) 27 Fed. 808.

But even if this allegation in the indictment was originally open to objection, we think it was a mere matter of form, which was cured by the general verdict. Repugnancy in an indictment is a ground for demurrer or motion in arrest of judgment. 18 Encyclopedia of Pleading & Practice, 743

The citation by counsel for accused of Wharton's Criminal Pleading & Practice, § 256, does not support his statement that this defect cannot be cured by a general verdict. Said section is as follows:

"When one material averment in an indictment is contradictory to another, the whole is bad. Thus, to adopt one of the old illustrations, if an indictment charge the defendant with having forged a certain writing, whereby one person was bound to another, the whole will be vicious, for it is impossible any one can be bound by a forgery. A relative pronoun, also, referring with equal uncertainty to two antecedents, will make the proceedings bad, in arrest of judgment. But as is elsewhere seen, every fact or circumstance laid in an indictment may be rejected as surplusage."

And the author, at section 161, referring to the fault of improperly pleading alternative statements in an indictment, says, "and ordinarily the objection, if good, cannot be taken after verdict," and again, in section 760, states that "errors as to form, not going to the description of the offense, which might have been taken advantage of at a previous stage, are not sufficient cause to arrest judgment." As to duplicity, which bears a close analogy to repugnancy, he says:

"It may be objected to by special demurrer, perhaps by general demurrer, or the court may quash the indictment, but the better view is that it cannot be made a subject of a motion in arrest of judgment or of a writ of error." Section 255.

Repugnancy in a criminal proceeding may be ground for quashing. 1 Bishop's Criminal Law, § 773. In United States v. Bayaud (C. C.)

16 Fed. 376, 386, in this circuit, the court, comprising Judges Wallace, Benedict, and Brown, held as follows:

"It is sought to have judgment arrested because the indictment charges in each count at least two separate and distinct offenses. Whether such be the fact, it is unnecessary here to decide, for, assuming the defect to exist, it cannot be availed of on a motion in arrest of judgment."

It appears from the record in the case at bar that the only action taken on behalf of the accused was as follows:

"I move at this stage of the case that there be a dismissal as far as this defendant is concerned. There has no connection been shown here in regard to conspiracy-and also on the ground that the government has failed to make out a case under the indictment."

It further appears that the court gave counsel for the accused exceptions, as though he had asked for a direction of acquittal, and it appears from the bill of exceptions signed by the judge that there was a denial of the motion for a new trial. We are unable to find a single case where the accused has been allowed thus to take advantage of a formal objection after verdict. In State v. Flint, supra, cited and specially relied upon by counsel for the accused, the question of repugnancy was raised by a motion to quash. In Commonwealth v. Lawless, 101 Mass. 32, cited in Wharton, at section 256, the question arose on a motion to quash the indictment. In Stokes v. United States, 157 U. S. 187, 15 Sup. Ct. 617, 39 L. Ed. 667, the objection to the sufficiency of the indictment was raised by demurrer. In United States v. Fay (D. C.) 83 Fed. 839, the question was raised by a motion to quash. In United States v. Harris (D. C.) 68 Fed. 347, it does not appear how the question was raised, but the court directed a verdict of not guilty for defects in the indictment. In United States v. Long (D. C.) 68 Fed. 348, the defendant demurred to the indictment. In United States v. Smith (D. C.) 45 Fed. 561, the question was raised by demurrer to the indictment. In Commonwealth v. Livermore, 4 Gray, 18, a new trial was granted on exceptions to the charge of the court. It thus appears that in every case cited by counsel for accused the objection of insufficiency of the indictment was raised by demurrer, or a motion to quash, or by exceptions to the charge. We have examined a number of other cases cited in the text-books on this point, and have been unable to find any well-considered case in which it has been held that such objection is not cured by a general verdict. The indictment charges, and the evidence sufficiently shows, all that is necessary to constitute a fraudulent attempt to commit an offense against the United States by the counterfeit money, etc., scheme.

We think the indictment was sufficient to apprise the defendant of the nature of the charge against him, and that, if there were defective or surplus statements, they have been cured by the general verdict of guilty. In any event, the counsel for the accused is not entitled to raise this question upon a motion to dismiss or acquit, or for a new trial. Where it appears to the court after verdict that, unless a defective averment were true, a verdict could not be sustained, in such case the verdict cures the defective averment, which might have been bad on demurrer. Clark's Criminal Procedure, § 117; People v. Mo

ran, 43 App. Div. 155, 59 N. Y. Supp. 312. "Every element of the offense being set forth in the earlier part of the count, there was no necessity for repeating it when the particular credit misapplied is described, nor of negativing every possible theory consistent with an innocent delivery of the note to the defendant. This requirement would have the effect of limiting the government to allegations it might be wholly unable to prove, and without subserving any useful purpose to the defendant. While the rules of criminal pleading require that the accused shall be fully apprised of the charge made against him, it should, after all, be borne in mind that the object of criminal proceedings is to convict the guilty as well as to shield the innocent, and no impracticable standards of particularity should be set up, whereby the government may be entrapped into making allegations which it would be impossible to prove. The note might have been delivered to the defendant for a score of honest purposes, which it would be utterly impossible to anticipate." Evans v. United States, 153 U. S. 584, 590, 14 Sup. Ct. 934, 38 L. Ed. 830.

We have not found it necessary to discuss the more liberal rules of pleading applicable to charges for conspiracy. We think the jury were entirely justified in finding, upon the evidence, that such a conspiracy existed in fact, that the defendant was one of the conspirators, and that the acts charged were committed in furtherance of said conspiracy.

The judgment is sustained.

WILMOTH V. HAMILTON et al.

(Circuit Court of Appeals, Third Circuit. January 6, 1904.)

No. 18.

1. SALES-CONTRACT-BREACH-EVIDENCE-LETTERS.

In an action for breach of an oral contract to sell plaintiff the output of defendant's coal mine at a certain price per ton, a letter written by plaintiff, not replied to, the day after the contract was made, purporting to be a memorandum of the terms of the contract as understood by plaintiff's agent, which did not differ from his evidence as to the terms of the contract, was not objectionable as a self-serving declaration.

2. SAME-CROSS-EXAMINATION.

Where defendant, after having sold the output of his coal mine to plaintiff for $1.10 per ton, stated the next day to the agent of another prospective purchaser that he had sold the coal to plaintiff for $1.15, with the understanding that, if he could get more for it, the sale was not binding, whereupon he was offered $1.16 per ton, at which price he sold the coal, a question, asked of defendant on cross-examination, as to what he told the agent of such subsequent purchaser about his contract with plaintiff, was not objectionable on the ground that it was immaterial, and asked for the purpose of discrediting defendant before the jury.

3. SAME-CONTRACTS-CANCELLATION.

Where, after defendant broke a contract to sell plaintiffs the output of his coal mine at a certain price per ton for a year, plaintiffs agreed to purchase the output for a particular month of the year, and, on defendant's writing that he would be unable to ship until he could get more

money from another, plaintiffs withdrew their offer for defendant's coal, such withdrawal should be construed to relate merely to the latter contract, and did not terminate plaintiffs' right to sue for breach of the contract for the sale of the output for the year.

4. SAME-INSTRUCTIONS.

Where, in a suit for breach of a prior contract for the sale of the output of a coal mine, it was claimed that certain correspondence canceling a subsequent contract only, operated as a cancellation of the first, an instruction submitting the construction of such correspondence to the jury as a mixed question of law and fact, to be determined in connection with all the testimony, was not prejudicial to defendant; the jury having found a cancellation of the subsequent contract only. 5. SAME-DAMAGES EVIDENCE.

In an action for breach of a contract for the sale of the output of a coal mine, evidence that the entire output of the region producing coal of the character of that contracted for had been bought up by others, and that defendant's mine was the last one the output of which could be purchased, was admissible to show whether plaintiff, on defendant's breach of his contract, could provide himself with coal in the same market, and charge the excess in price, if any, to the vendor. 6. SAME-ORDER OF PROOF-REBUTTAL.

It is within the discretion of the trial court to permit the admission of evidence in rebuttal which should have been offered in chief, and, where such discretion is not abused, a writ of error will not lie to the trial court's action thereon.

7. SAME-MEASURE OF DAMAGES-PROFITS.

Where plaintiff purchased the output of defendant's coal mine at a stated price, to be furnished to a third person to whom plaintiff was bound to deliver the coal under a contract of sale, and there was no available market in which plaintiff could purchase goods of the same description, on defendant's refusal to perform, plaintiff was entitled to recover the difference between the price at which he had contracted to buy the coal and what he was to receive therefor from his vendee. 8. SAME-INSTRUCTIONS-OBJECTIONS.

Where, in an action for breach of a contract for the sale of the output of a coal mine, plaintiff would have been entitled to recover profits lost on a resale of the coal, defendant could not object to an instruction limiting the recovery to the difference between the contract and market price at the place the coal was to be delivered.

In Error to the Circuit Court of the United States for the Western District of Pennsylvania.

W. H. Ruppel, for plaintiff in error.

Johns McCleave, for defendants in error.

Before ACHESON, DALLAS, and GRAY, Circuit Judges.

GRAY, Circuit Judge. The case in the court below was a suit for damages for a breach of contract, by Hamilton & Co., the plaintiffs below, citizens of the state of Maryland, against Henry J. Wilmoth, defendant below, a citizen of the state of Pennsylvania. The facts disclosed in the record, and in the main undisputed, are as follows:

S. M. Hamilton & Co. were coal dealers in Baltimore, Md., selling Salisbury region coal. The plaintiff in error, Wilmoth, was operating a mine in the Salisbury region. Adams, a member of the firm of S. M. Hamilton & Co., on May 2, 1900, had an interview with

17. See Sales, vol. 43, Cent. Dig. §§ 1190, 1193.

127 F.-4