There are three counts in the indictment, but, so far as concerns the demurrer, they are alike, and may be considered together. The objections urged to the indictment are that the averment as to the devising of the fraudulent scheme alleged against the defendant is by way of recital, not direct statement, and that there is no charge whatever, unless it be by implication or inference, that the defendant intended, as a part of such scheme, to effect the same by opening correspondence through the postal establishment of the United States. The averment in question is as follows:

Section 5480 of the Revised Statutes provides as follows:

Under this section the courts have repeatedly held that, to constitute the offense therein defined, three things are necessary: First, a scheme to defraud; second, as an essential part of the scheme, an intention, to effect the same by opening correspondence through the mail; third, the depositing of a letter in the mail or taking one therefrom, in execution of such scheme. Stokes v. U. S., 15 Sup. Ct. 617; U. S. v. Smith, 45 Fed. 561 ; U. S. v. Wootten, 29 Fed. 702 .

*349 In tbe case of U. S. v. Harris, 15 Sup. Ct. 347, hied in ibis court: last ^November, Judge Ross held that one of tbe elements of said offense was tbe intended use of the mail in furtherance or execution of the fraudulent scheme; and, because the indictment did not allege directly that tbe scheme included such intended use of the mail, be instructed the jury to return a verdict of acquittal. In tbe case of Weeber v. U. S., 62 Fed. 740 , the precise point here involved' was not discussed, or even referred to in terms, but the objections there urged seem to have been that, under tbe facts of That case, there was no likelihood that tbe use of the mail would effect the fraudulent purpose charged, and that such use was only one step in a series of acts intended to accomplish said purpose, and that, therefore, the indictment was bad. Against these objections tbe court held the indictment good. I do not, however, consider this last-named case as an authority in opposition to the rulings in the other cases above cited. Indeed, Judge Ross cites the Weeber Case, among other authorities, in support of his ruling in the Harris Case.

If is unnecessary, however, to further review this line of authorities, since the supreme court of the United States, in the late case of Stokes v. U. S., above cited, has authoritatively" declared that:

The requirement: is elementary that an indictment should allege with directness all the constituents of the crime it purports to charge. On this subject the supreme court of the United States .has spoken in emphatic and unequivocal language, as shown by the following. quotation:

The averment here that the defendant, “having devised a scheme to defraud one J. W. S trickier, to be effected by opening correspondence and communication with said Strickler by means of the post-office establishment of the United States,” seems to be more in tbe nature of a recital iban a positive allegation, and therefore, according to the authorities, is at least open to criticism. Assuming, however, without deciding, that (Ids defect is one of form, and not fatal, the more serious objection remains that the indictment fails to allege that it was defendant’s intention, as a part of Ids *350 fraudulent scheme, to open correspondence through the mail. Nor is it any answer to this objection to say that the language of the indictment is the same as that employed in the act of congress creating the offense, for the obvious reason that the rules of construction applicable to an indictment are different from those which control the interpretation of a statute. To illustrate: Section 5480, already quoted, provides “that if any person, having devised * * * any scheme or artifice to defraud, to be effected by * * * opening * * * correspondence * * * with any other person * * * by means of the post office establishment of the United States,” etc. This provision does not in terms require that the person devising the fraudulent scheme must intend, as a part of the same, that it shall be effected by opening correspondence through the mail, but the implication is strongly that way, and the courts have accordingly and uniformly held such intention to be a material element of the offense; and the decisions to this effect do no violence to any requirement of statutory construction, but are in harmony with the well-recognized principle that, where a" statute creating a penalty is susceptible of two meanings, that meaning which operates in favor of life or liberty is to be adopted. With reference, however, to indictments, the rule of construction, although approved by the same favorable disposition to life and liberty, is inexorable that the essential constituents of the offense sought to be charged must be' expressly and positively averred. In the language of the supreme court, quoted above, “no essential element of the crime can be omitted without destroying the whole pleading. The omission cannot be supplied by intendment or implication, and the charge must be made directly, and not inferentially or by way of recital.” Applying this rule to the present case, and remembering that one of the constituents of the crime sought to be charged is that the defendant intended, as a part of his fraudulent scheme, to open correspondence through the mail, the insufficiency of the indictment becomes clearly manifest. The averment, assuming it positive and direct, that the fraudulent scheme was “to be effected by opening correspondence^ * * * by means of the post .office establishment,” is merely a designation of the instrumentality by which the scheme was, in point of fact, to be accomplished, and, unaided by implication or inference, certainly falls far short of changing that the defendant, as a part of his fraudulent scheme, designed its accomplishment through the instrumentality named. For fuller illustration and support of this point, I refer again and specially to the case of U. S. v. Smith, supra.

In the case of Stokes v. U. S., supra, the indictment, which was held to be sufficient, alleged as follows:

*351 This, it will be observed, is an averment, not only that the post-office establishment was to be used in executing the fraudulent scheme, but, furthermore, that such use was a part of the scheme, or, in the phraseology of the indictment, was “pursuant to said conspiracy.'’ The allegation, however, of the indictment in the present case, is simply that the fraudulent scheme was to be effected by the use of the postal establishment, without any averment that such use wins designed as a part of the scheme.

My conclusion is that the indictment does not charge expressly and with directness, if at all, that the fraudulent scheme comprehended an intention that the same should be effected by opening correspondence through the postal establishment of the United States, and, for that reason, is defective. Demurrer sustained.