
    *Buckland v. Commonwealth.
    June, 1837.
    Criminal Law — Passing Counterfeit Bank Notes. — It is felony under the statute 1 Bev. Code, cb. 154, § l, to pass a counterfeit note of the hank of the United States, dated at a time when that hank was in existence. though, at the time of passing the note, the charter oi the hank had expired.
    Same— Same— Indictment — Averments- Time — Place— Scienter. — Indictment for passing a counterfeit note charges that the prisoner, on a particular day, at the county of M. and within the j urisdiction of the court, being possessed of the note, felo-niously did pa.ss Hie same, well knowing it to he counterfeit at the time he passed it: Hull, the time and place of passing the note, and of the scienter, are set forth with suliicient certainty.
    Same — Same—Saire —Indorsement on Note — Variance. —In setting onl a counterfeit bank note in hajc verba, in an indictment for feloniously passing’ tile same, an indorsement appearing to have been made on the note affer it was passed, is properly omitted, and the omission is therefore no ground for the objection of variance.
    Same — Same—Variance—Secondary Evidence. — On the trial of an indictment for passing a counterfeit hank note, the prisoner moves to exclude the note produced from going in evidence to the jury, on the ground that the name of one of the firm of engravers, set out in the description of the note in the indictment, does not appear on the note produced : the attorney for the commonwealth proves, that when he drew the indictment, he had been able to make out the name on the note, from his knowledge that one of the lirm of engravers bore that name, though he cannot, say he would have been able to do so without the knowledge of that fact; but that the word had since become indistinct, — he supposes, by handling the note : the court thereupon overrules the motion to exclude, and permits evidence to be given of the passing of the note produced : Held, it was right for the court to do so.
    Writ of error to judgment of circuit supe-riour court of law and chancery for Monroe county.
    The plaintiff in error was indicted in that court, at October term 1836, for passing a counterfeit bank note. There were two-counts in the indictment; to each of which the prisoner demurred. The first count charged that John Buckland, late of Monroe county, on the 14th of September 1836,. at the said county and within the jurisdiction of the circuit court, being pos- , sessed of a *certain false, forged and counterfeited bank note, purporting to be a bank note of the bank of the United States, of the denomination of 20 dollars, which said false, forged and counterfeited bank note is in the words and figures following — •
    “20, B. 4724. B. 4724, 20
    The President, Directors & Co. of the bank of the United States promise to pay, on demand, twenty dollars at their office of discount and deposit in New York, to the order of M. Robinson cashier thereof.
    Philadelphia, the 7, of June 1833.
    S. Jaudon, Cash’r. N. Biddle, Pres’t. Eairman, Draper, Underwood & Co.”
    on which said note was the following endorsement: “Pay the bearer. M. Robinson.” — feloniously did pass to one William Adair the said false, and counterfeited note, with intention to injure and defraud the said William Adair, he the said John Buck-land well knowing the said note to be false, forged and counterfeited, at the time he passed the same to the said William Adair, against the form of the act of the general assembly &c.
    The court overruled the demurrer to this count, but sustained the demurrer to the other. Whereupon the prisoner pleaded not guilty to the said first count, was tried, found guilty, and sentenced tc imprisonment for ten years in the penitentiary.
    At the trial, the prisoner filed a bill of exceptions, stating, that the attorney for the commonwealth offered in evidence on the trial, in support of the prosecution, a note in the words and figures following, to wit: “20, B. 4724, &c.” [There was no further description of the note in the bill of exceptions.] That to the introduction of this note the prisoner by his counsel objected, on the ground that it was not the same note described in the indictment, but varied from it in this, that *the note offered, in addition to the in-dorsement “Pay the bearer. M. Robinson,” had the indorsement “Cir. Sup. Ct. Oct. Tm. 1836, Indictment” ; and that in the note offered, the words ‘ ‘Eairman, Draper, Underwood & Co.” were not legible ; and that thejtre were other variances, in this, that some i’s were not dotted and some t’s not crossed,' — which latter variances, however, were not particularly pointed out to the court. That the court, upon inspecting the note offered, made out the words “Fairtnan, Draper,” the first part of “Underwood,” and the “& Co.”; but the latter part of the name “Underwood” was illegible. That it was proved by the attorney prosecuting for the commonwealth, that at the time he drew the indictment, he had been able to make out the word “Underwood,” from a knowledge of the fact that Underwood was one of the firm of engravers, though he did not know that he would have been able to do so, without the knowledge of that fact; but that the word had become indistinct since that time, —he supposed, by handling the note. Whereupon the court overruled the objection, and permitted evidence to be given in relation to the passing of the note produced: to which opinion the prisoner excepted.
    On the petition of Buckland, a writ of error was awarded at the last term of this court, to the judgment of the circuit court.
    And now the cause was argued hereby R. T. Daniel for the plaintiff in error, and the attorney general for the commonwealth.
    
      
       See monographic note on “Forgery and Counterfeiting” appended to Coleman y. Com., 25 Gratt. 865, and monographic note on “Indictments, Informations and Presentments” appended to Boyle v. Com., 14 Gratt. 674.
    
   FIELD, J.,

delivered the opinion of the court. — It has been contended on behalf of the prisoner that the demurrer should have been sustained as to the first count of the indictment, 1. Because, at the time of passing the note referred to in the indictment, there was no such bank in existence as the bank of the United States; which fact the court ought ex officio to know and consider. *2. Because the indictment does not set forth with sufficient certainty the time and place of passing the note. 3. Because it does not set forth with sufficient certainty the time and place of the scienter.

At the date of the note in question, the bank of the United States was in-existence, although at the time of passing the note the charter had expired. Therefore, as the act of assembly under which the prisoner was prosecuted, 1 Rev. Code, ch. 154, § 1, p. 578, prohibits in terms the passing of forged and counterfeited notes of that bank, it is not material to consider whether the charter of the bank had expired or not; if indeed it were proper to consider that question at all, upon a demurrer to the indictment.

Upon looking at this indictment, a majority of the court is of opinion that it is substantially averred in the indictment, that the prisoner passed the note in question on the 14th day of September 1836, at the county of Monroe, within the jurisdiction of the circuit court in which he was indicted; and a majority of the court is also of opinion that it is substantially averred in the indictment, that the prisoner, at the time and place of passing the note, knew that it was a false, forged and counterfeited note; and that therefore the grounds of objection taken by the counsel for the prisoner upon those two points do not exist in point of fact. Because, if, as it is averred, the prisoner passed the said note on the 14th day of September 1836, at the county of Monroe and within the jurisdiction of the said circuit court, to the said William Adair, with intention to injure and defraud him, well knowing that the said note, at the time of passing the same, was false and forged, he necessarily knew, at the time and place of putting off and passing the said note, that the same was forged and counterfeit, as absolutely and certainly as if- it had been alleged in the indictment that he then and there knew the. same to be so counterfeited, false and forged. s'The counsel for the prisoner has contended before this court, that the bill of exceptions in this case is so imperfect, that the court here cannot perceive clearly what were the grounds of objection taken by the prisoner to giving this note in evidence to the jury, nor what was the real judgment of the court on this part of the case; and that the judgment, for this reason, should be reversed. But the court thinks differently. The bill of exceptions states clearly what were the questions raised by the prisoner, and decided by the circuit court. The objections were, first, that some i’s were not dotted, and some t’s not crossed; secondly, that the words 1 ‘Cir. Sup. Ct. Oct. Tm. 1836, Indictment.” found on the note, had not been inserted in the indictment; and thirdly, that the last syllable of the name “Underwood” did not appear upon the face of the note offered in evidence. In reference to these questions the court will remark, that as to the first, the prisoner’s counsel here, as well as the court, thinks the failure to dot i’s and cross t’s an immaterial matter. The words “Cir. Sup. Ct. Oct. Tm. 1836, Indictment.” constituted no part of the note, and were, no doubt, indorsed upon the note after it had been passed by the prisoner; and could not therefore with propriety have been introduced into the indictment. As to the obliteration of the last syllable of the name “Underwood,” — that syllable having been effaced after the note was passed, it became necessary to introduce secondary evidence to prove that the name was engraved upon the note at the time of its being passed by the prisoner. The indictment has described the note truly, as it appeared at the time of its being passed by the prisoner; and as the truth of that description could not be manifested by an inspection of the paper after the name had been effaced, there was no other means left by which the truth of the description could be manifested, except by the introduction of parol testimony.

*Upon the whole, a majority of the court is of opinion that there is no error in the judgment of the circuit court, and that the same should therefore be affirmed.

CLOPTON, J.

The indictment against the prisoner charges “that John Buckland, late of Monroe county, labourer, on the 14th day of September 1836, at the said county of Monroe and within the jurisdiction of the circuit court, being possessed of a certain false, forged and counterfeited bank note, purporting to be a bank note of the bank of the United States, of the denomination of 20 dollars, which said false, forged and counterfeited bank note is in the words and figures following, that is to say” (setting out the note in haec verba) “on which said note was the following indorsement: ‘Pay the bearer. M. Robinson.’ feloniously did pass to one William Adair the said false, forged and counterfeited note, purporting &c. with intention to injure and defraud the said William Adair, he the said John Buckland well knowing the said note to be false, forged and counterfeited, at the time he passed the same to the said William Adair, against the form of the act,” &c.

To this indictment the prisoner demurred. The circuit court overruled the demurrer. He then pleaded to the indictment, and the jury found him guilty. This court has awarded a writ of error; and one of the errors assigned is, that the indictment does not sufficiently charge the time and place when and where the offence was committed. Concurring with the court in the opinion given in the case, except on this point, I shall confine myself to a brief examination of this.

It is conceded that the offence charged must be laid with time and place, and that this averment of time and place must extend to every material allegation. The prosecutor, it is true, is not confined to the time laid in the indictment, but may prove the offence to have been committed at another time: and the time and place laid *may be connected with each material allegation by the phrase ad-tunc et ibidem, or, in english, then and there. But it being necessary to lay a time and place connected with each material allegation, the question is, has that been done in this case? The material facts are the passing the counterfeit note, and the knowledge of the prisoner, at the time of passing, that it was counterfeit. To produce the conviction of the prisoner, it was necessary to prove both these facts; and this involves the necessity of charging them in the indictment. They are then material allegations, without the averment of which the indictment would be insufficient ; and if necessary to be averred, they must be averred with time and place. The words of the indictment, “that John Buck-land, on the 14th day of September 1836, at the county of Monroe, being possessed of a certain false, forged and counterfeited bank note, purporting &c.” are a mere recital of the fact that Buckland had a counterfeit note in his possession on the given day; and though it is afterwards charged that he did pass to Adair the said note, does it therefore follow, or is it true either in grammatical or legal construction, that the passing occurred on the day on which he is said to have been possessed? It is certainly' true that he could not pass without being possessed, but he may have been possessed without passing. The criminal fact charged must be laid to have been committed on some particular day, either directly, or connected with a day previously laid, by the terms then and there. Here, no day is directly laid as the day on which the criminal fact charged is alleged to have been committed. The day is to be collected by intendment from and connexion with a fact antecedently laid. This antecedent fact is, that at a particular time and place, he was possessed of a counterfeit note. The criminal fact subsequently charged is not introduced by the phrase then and there; and if that expression is not necessary here *to connect these two facts, it seems difficult to imagine any case in -which the use of it would be necessary. He was possessed on the 14th of September 1836, and did pass: when? Whether then and there, or at some other time and place, is to my mind altogether uncertain. Taking this in connexion with the fact that the scienter is charged at the time of the passing, the scienter also is laid without a venue.

It may be said that the fact of being possessed is surplusage, and may be rejected. Mere -surplusage should in all cases be rejected : but is this allegation of that character? It may' not be necessary to allege the possession in the indictment, but the possession itself is of the essence of the perpetration of the crime. No one can pass, without being possessed; and proof of the fact of passing carries along with it, necessarily, proof of the fact of possession. Possession, then, cannot be considered as merely immaterial; and although it was not necessarily inserted in the indictment, yet being there, it cannot be rejected on the ground of being mere surplus matter. But reject it; and then the indictment reads, ‘ ‘that John Buckland, on the 14th day of September 1836, at the county of Monroe, a certain false, forged and counterfeited bank note feloniously did pass to William Adair the said note.” Is this an allegation that he passed, on the 14th of September 1836? In that view, what is the meaning of this last phrase, the said note? Is it also to be rejected? If it is, the indictment would be sufficient. But it is a most essential part of the offence, as alleged, and cannot, as it seems to me, be disregarded; and if it be regarded, what connects it with the previous allegation of time and place? In my humble judgment, there is nothing to close the hiatus.

This general reasoning is fortified by the only direct authority which I have been able to find, which is Cotton’s Case, reported in Cro. Eliz. and relied upon by lord *Hale (2 P. C. 168), in laying down the rule upon this subject. In Cotton’s case, the indictment charged that “having a sword in his hand, he gave a blow.” This indictment was held bad. And all the precedents to which I have had access, by the precision and particularity with which they lay the principal and each material fact, as regards time and place, also furnish strong corroborative authority. For sometimes the forms of the Jaw are of the essence of the law, and an adherence to them is essentially necessary to a due administration of justice; and however unwilling I may he that a convicted felon should escape merited punishment, yet when a form (to call it so) which I am unable to separate from the substance, seems to have been overlooked, I am not permitted to hesitate; and therefore I conclude that the indictment is uncertain and insufficient, and that the demurrer should have been sustained.

ALLEN, J., concurred in the opinion of judge Clopton.

BROWN, J.,

before whom the cause was tried in the circuit court, declined expressing any opinion on it here, though he'consented to sit in the case, as it was necessary for him to do so in order to form a court.

Judgment affirmed.  