Opinion of the Court.

not exceeding fifty thousand, to serve twelve months, or until the end of the war; by section 4, they were declared to be subject to the rules and articles of war, and in all respects, except as to clothing and pay, placed on the same footing with similar corps of the United States army; and in section 9, there was a further provision that they should have the organization of the army of the United States and the same pay and allowances. This act undoubtedly entitled the claimant to the same pay as a volunteer during his term of actual service that he would have received if he had been in the regular army; but it does not follow that, after his service was concluded and he was mustered out, such past service was intended to be recognized as a service in the army of the United States. The act, so far from amalgamating the volunteers and the regular army, distinguishes the two, and limits their identity to the receipt of the same pay and allowance. This is the more obvious from the very next act, passed upon the same day, which authorizes an increase of the rank and file of "the army of the United States" by voluntary enlistments. The first act dealt exclusively with the militia and volunteers; the second with the regular army.

Very little light is thrown upon the question by prior legislation. It is true that the Constitution provides that "the President shall be commander-in-chief of the army and navy of the United States, and of the militia of the several States, when called into the actual service of the United States." Nothing is said in this connection of volunteers; but the object of the provision is evidently to vest in the President the supreme command over all the military forces, such supreme and undivided command as would be necessary to the prosecution of a successful war. The regular army dates its birth from the act of September 29, 1789, c. 25, 1 Stat. 95, which continued in the service of the United States a small military force, which had been held subject to the authority of Congress when the Constitution took effect. This act was superseded the following year by an act for regulating the military establishment, (act of April 30, 1790, c. 10, 1 Stat. 119,) but nothing was said with regard to volunteers until

Opinion of the Court.

May 28, 1798, when, in view of a possible war with France, the President was authorized to raise a provisional army of volunteers, who, when called into actual service, were to receive the same pay, rations, forage and emoluments of every kind, except bounty and clothing, as the other troops to be raised by the act. Act of May 28, 1798, c. 47, 1 Stat. 558. By subsequent acts, passed at different critical periods, the President was authorized to accept the services of volunteers, who, though treated while in actual service as a part of the army of the United States, were so considered only in a limited sense, and while in actual service.

Their time of service as such volunteers never seems to have been computed in estimating the five years, after which they were entitled to longevity rations, until the act of March 2, 1867, c. 159, 14 Stat. 434, entitled "An act declaring and fixing the rights of volunteers as a part of the army," the first section of which provided that "in computing the length of service of any officer of the army, in order to determine what allowance and payment of additional or longevity rations he is entitled to, there shall be taken into account and credited to such officer whatever time he may have actually served, whether continuously or at different periods, as a commissioned officer of the United States, either in the regular army, or since the nineteenth day of April, eighteen hundred and sixty-one, in the volunteer service, either under appointment or commission from the governor of a State, or from the President of the United States."

.

It seems to us this act is decisive of the question. It provides in substance that, in estimating the length of service for the payment of longevity rations, he shall be credited both. for his service as an officer of the regular army, or, since the nineteenth day of April, eighteen hundred and sixty-one, as an officer in the volunteer service. The object of the act was evidently, first, to extend to such volunteer officers as had served in the army since the breaking out of the civil war, the same privilege with respect to longevity rations as had, by the act of 1838, been already secured to officers of the regular army; and second, to limit that privilege to those

Syllabus.

who had served since that date. If those who served before that date had been treated as entitled to longevity pay, the act was wholly unnecessary, as there was no question that, under the act of 1838, the officers of the regular army were so entitled; and the extension of the same privilege to officers of the volunteer army was evidently a new provision, and to be restricted to those who had served as such since the breaking out of the war. It is a plain case for the application of the maxim: Expressio unius est exclusio alterius. Had it been shown that, prior to the passage of this act, the practice of the department had been to estimate the length of an officer's service as a volunteer, in making up the five years' service entitling him to longevity pay, the act might have been construed to be in affirmance of the previous law; but, so far as the record of this case shows, the practice appears to have been the other way, and the act must be treated as establishing a new rule for such officers in the volunteer service after April 19, 1861.

The judgment of the court below must, therefore, be

Reversed, and the case remanded to the Court of Claims with direction to dismiss the petition.

COCHRAN AND SAYRE v. UNITED STATES.

ERROR TO THE DISTRICT COURT OF THE UNITED STATES FOR THE DISTRICT OF COLORADO.

No. 815. Argued and submitted March 4, 1895. - Decided March 25, 1895.

In an indictment against the president and the assistant cashier of a national bank for making a false entry in a report, under Rev. Stat. § 5209, the report need not be described with technical accuracy; nor is it necessary to allege that the report in which the false entry was made was verified by the oath or affirmation of the president or cashier, or attested by the signature of the directors.

In such an indictment the true test is, not whether it might possibly have

been made more certain, but whether it contains every element of the

Statement of the Case.

offence intended to be charged, and sufficiently apprises the defendant of what he must be prepared to meet, and, in case any other proceedings are taken against him for a similar offence, whether the record shows with accuracy to what extent he may plead a former acquittal or conviction.

Several objections to the admissibility of evidence considered and disposed of.

A note whose payment is guaranteed by a national bank is a liability of the bank which is required by law (Rev. Stat. § 5211) to be shown in the report to the Comptroller of the Currency.

Some objections to the charge considered and disposed of.

The defendants requested the court to charge the jury as follows: "You are further instructed that the defendants are presumed to be innocent until the contrary appears beyond a reasonable doubt, and that every reasonable doubt or presumption arising from the evidence must be construed in their favor." The court refused to give this instruction, but instead thereof gave a carefully prepared definition of reasonable doubt, without referring to the presumption of innocence which attends an accused at every stage of the proceeding. Held, following Coffin v. United States, 156 U. S. 432, that this was error, as the defendants were entitled to an instruction upon the point of the presumption of innocence, if requested.

THIS was a writ of error to review a conviction of William H. Cochran, president, and Robert H. Sayre, assistant cashier, of the First National Bank of Del Norte, Colorado, for making a false entry in a report to the Comptroller of the Currency. On November 22, 1893, the grand jury presented three separate indictments against the plaintiffs in error, which were numbered 959, 960, and 992 respectively. These indictments were identical in language, except so far as it was necessary to change them, so that the plaintiffs in error could both be charged as principals, and as accessories of each other. In No. 959, both were charged as principals, for making false entries in their reports. In No. 960, Sayre was charged with making, and Cochran with aiding, abetting, and procuring Sayre to make such false entries; and in No. 992, Cochran was charged with making, and Sayre as an accessory.

Each indictment contained twelve counts, and on motion to quash, the tenth, eleventh, and twelfth counts of each indictment were held to be insufficient. On May 11, 1894, the three indictments were consolidated and tried as one, and on

Opinion of the Court.

June 6, 1894, the defendants were convicted upon the first count of the indictment originally numbered 960.

Whereupon defendants sued out this writ of error.

Mr. E. F. Richardson, (with whom was Mr. Charles S. Thomas on the brief,) for plaintiffs in error.

Mr. Solicitor General, for defendants in error, submitted on his brief.

MR. JUSTICE BROWN delivered the opinion of the court.

As the defendants were convicted solely upon the first count in indictment No. 960, it is only necessary to consider the questions arising upon this count.

1. The first assignment of error relates to the sufficiency of this count, which charges that "Robert H. Sayre, William H. Cochran being then and there president, the said Robert H. Sayre being then and there assistant cashier of the First National Bank of Del Norte, Colorado, did make, in a certain report of the condition of the First National Bank, . . at the close of business on the 30th of September, 1892, made to the Comptroller of the Currency in accordance with the provisions of section 5211 of the Revised Statutes of the United States, a certain entry."

The first objection to the indictment is that as section 5211, referred to in this count, provides that "every association shall make to the Comptroller of the Currency not less than five reports 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 such association, and attested by the signature of at least three of the directors," the indictment should aver that the report was made by the association. The offence charged, however, is not the making or the failure to make the report under section 5211, the failure to make which report subjects such association to a penalty under section 5213, but the making of a false entry in a report, under section 5209, which provides that "every president, director, cashier, teller, clerk, or agent of any association,"