
    Commonwealth versus Jesse Morse.
    The possession of materials devised, adapted, and designed, for counterfeiting bank notes, without an intent to use [or cause or permit them to be used] in counterfeiting, is not an offence within the statute of March 15, 1805. [Such intent must be alleged in the indictment.]
    The defendant was indicted, tried, and convicted, at the last April term, before Sedgwick, J. The chargejn the indictment was, 11 that the said Morse, at, &c., on, &c., with force and arms, fraudulently and deceitfully, had, held, and kept in his possession, six quires of noper, which was a material devised, adapted, and designed, by him for forging and making false and counterfeit notes, in imitation of those issued by banks and banking companies established withir some one of the United States of America, by the laws [ * 129 ] of the said states, under * the federal constitution, and by laws passed by the same states severally — against the peace, &c., and the law in that case made and provided.”
    After the conviction, the defendant moved in arrest of judgment, because it is not alleged in the indictment that he was possessed of the said paper with an intent to use and employ the same, or to cause or permit the same to be used and employed, in forging and making any such false and counterfeit notes.
    
    
      F. Blake,
    
    in support of the motion. This indictment is founded on the fifth section of an act passed March 15, 1805, entitled “ An Act against forgery and counterfeiting.” By this section it is enacted “ that if any person shall have in his possession any paper or other material, devised, adapted, and designed, for the stamping, forging, and making, any false and counterfeit bills or notes, with the intent to use and employ the same, or to cause or permit the same to be used and employed, in forging and making any such false and coun terfeit bills or notes, every person so offending shall,” &c.
    The indictment does not describe an offence within the meaning and intention of the legislature in this section. The intent to make an illegal use of the material or tool constitutes the essence of the crime. If the indictment does not bring the offence within the statute, there can be no conviction, for the mere possession is no offence, nor, indeed, is the possession with intent to use an offence at common law. But it may perhaps be said that the words “ devised, adapted, and designed,” are of equal force. We conceive otherwise. The best lexicographers give us a very different interpretation. “ Devised ” does not comprehend intention ; “ adapted ” has no such meaning ; “ designed ” may be more doubtful; but in the mechanic arts, to which in this place it seems restrained, it is applied to the describing or drawing the outlines of a painting or engraving. It is not to be presumed that the legislature use superfluous words ; but if “ designed ” be construed to include an intent, then the other words, “ with the intent,” &c., which are repeatedly used in this statute, are perfectly superfluous and nugatory.
    [*130 ] * Where doubts exist in the construction of penal laws, the milder sense is to be preferred. We contend that the legislature could never intend to create such an offence as this without requiring the charge and the proof to be strictly alleged and proved. We say, then, that we might safely agree that the defendant had in his possession the paper mentioned, and that it was devised, adapted, and designed, for counterfeiting bank bills; yet, unless an intent to use and apply it in that way is alleged and proved, he has not committed an offence within the statute.
    The Attorney-General
    
    contended that two offences are described in the fifth section: the defendant is indicted for one of them only. The grand jury has not seen fit to indict him for the other. It might be that he had no intention to use the paper himself —• he might intend it for his neighbor. This expression “ with the intent,” &c., seems merely tautological, and to be a repetition in another phraseology of the preceding words, “adapted and designed.” This is frequent in our statutes. The legislature is apt to use repetitions. In this very statute several examples occur, — as “ engrave, form, and make;” “mend and begin to mend;” “rolling-press, paper, or other instrument.”
    
      J. Upham, in reply, was stopped by the Court.
   Parker, J.,

was very clear that the construction made by the defendant’s counsel was not to be avoided. If no criminal intent is alleged and proved, there can be no judgment rendered under the statute.

Sedgwick, J.,

after stating the charge in the indictment, and

noticing that the defendant was convicted on very satisfactory evidence, proceeded as follows: —

I observe, in the first place, that none of the statutes of jeofails extend to indictments ; and therefore a defective indictment is not cured by a verdict, If, then, this indictment be materially defective, the judgment must be arrested.

* It is a general rule in indictments upon statutes, that, [ * 131 ] unless the statute be recited, neither the words contra formam statuti, nor any intendment or conclusion, will make good an indictment which does not bring the fact prohibited or commanded, in the doing or not doing whereof the offence consists, within all the material words of the statute.

The offence which was intended to be charged against the defendant is described, in the fifth section of the statute, in these words: “ or shall have in his possession any such plate or plates, engraven in any part, or any paper, &c., devised, adapted, and designed, as aforesaid, (that is,"for the purpose of counterfeiting,) with intent to use and employ the same in forging, &fC.” Now, if the intent to use and employ the paper mentioned, for the purpose ex pressed, be a material part of the description of the offence, and if that intent be not substantially alleged by the words of the indictment, “ designed by him” then the indictment, according to the rule which I have expressed, is defective. That the intent, which accompanies the possession, is material, there can be no doubt; for a man might have the possession not only with the most innocent, but with a laudable intention. The only question, then, which can arise is whether, by the words in the indictment, “ designed by him,” there is a sufficient charge of the unlawful “intent” expressed in the statute ; and my opinion is, that there is not. I am inclined to believe that the word “ designed,” in the statute, was intended to point out the particular purpose to which the instrument or material might be applied. This opinion is founded on the connection, in the statute, of the word “ designed ” with the words “ devised and adapted.” And this opinion is strengthened by a recurrence to the preceding part of the same section, where it is said that “ if any person shall engrave, &c., or begin to engrave, &c , any plate, &c., devised, adapted, and designed, &c. The statute then goes on to describe the possession of the same instruments and material so “ devised, adapted, and designed;’” and then adds what alone, as it seems to me, constitutes the crime intended to [ * 132 ] *be punished, “ with the intent to use and employ the same,” &c., which intent refers back, and runs through all the actions previously expressed in the statute. On the whole, I am very clear that the intent mentioned in the statute is a material part of the description of the crime intended to be charged against the defendant; and that that intent is not sufficiently alleged, nor. indeed, at all alleged, by the words “ designed by him ” used in the indictment; and therefore that nO judgment can be rendered on the conviction.

Parsons, C. J.

I am in opinion with my brethren. The words “ devised, adapted, and designed,” relate to the form or the nature of the materials. They have no reference to the person having them in his possession, or to his intention. This indictment 'being on the latter clause of this fifth section, and the intent necessary to constitute the offence not being alleged, we can give no judgment against the defendant,

Judgment arrested 
      
      
         Brown vs. The Commonwealth, 8 Mass. Rep. 59.
     
      
      
         2 H H. P. C. 193.
     
      
       2 Hawk. P. C. c. 25, § 110, and authorities there cited.-Dy. 363, pl. 25.-2 H. H. P. C. 192.—1 Leach, C. L. 12, 82, 121.
     