
    Clark vs. Commonwealth.
    APPEAL FROM ROCKCASTLE CIRCUIT.
    1. “Where a person or thing necessary to be mentioned in an indictment, is described with circumstances of greater particularity than is requisite, yet those circumstances must be proved; otherwise it would not appear that the person or thing is the same described in the indictment.” {Wharton’s Am. Critn. Ev., 3d Ed. page 101; Dorsett’s case, 5 Roger’s Rec. 77; 6 Maine, 476; United States vs. Porter, 3 Day’s case's, 283.)
    2. The indictment was for having counterfeit bills in possession, of a certain description, purporting to be on certain named banks, with the intent to pass them. The proof failed to show that the notes which defendant had, purported to be on any of the banks specified; such proof was necessary to authorize a conviction, and the court should so have instructed the jury when requested.
    3. It is not necessary that the intention should be to pass counterfeit bills in the state of Kentucky. The statute is general, embracing the intention to pass them at any place.
    The facts of the case are stated in the opinion of the Court. Rep.
    
    
      B. Sf 'J. Monroe for appellant—
    The indictment is for having counterfeit bank notes in possession, purporting to be on various banks of Kentucky, with the intention to pass them. None of the witnesses proved that any money found in possession of defendant was counterfeit, except by the confessions of defendant; and the proof is that the notes seen purported to be Virginia bank notes. — - Whether there be any incorporated banks in Virginia this court does not judicially know.
    1. The indictment specially charges that defendant had in possession counterfeit notes, purporting to be the issue of the Farmers Bank of Kentucky, the Northern Bank of Kentucky, and the Southern Bank of Kentucky, of certain descriptions. Can the defendant be convicted by proof showing that he was in possession of notes of different descriptions, and purporting to be the issue of different banks from those specified in the indictment? It is supposed he cannot.
    Waving the question whether it was necessary to say more in. the indictment than that the defendant had in his possession forged and counterfeit bank notes, with the intention of passing them, it is insisted, that having described the notes particularly that the Commonwealth is confined to proof of such notes as are described. Proof that the defendant had other counterfeit notes in possession might have been admissible after proving the possession of the notes described, to prove the intention to pass such notes, but not to establish the main charge in regard, to the notes described.
    In England, under the statute of William IY prohibiting the circulation of false coin, it was held that the prosecution was bound to show — 1. The possession of the false coin. 2. The knowledge that it was false coin. 3. The intent to utter or pass oiF the same. (See Roscoe’s Criminal Evidence, 396.) In this case it was necessary to prove the particular description of bank notes specified in the indictment, and then that they were counterfeit. In the authority just cited, at page 102, it is said, “when a person or thing necessary to be mentioned in an indictment is described with greater particularity than is requisite, yet those circumstances must be proved, otherwise it would not appear that the person or thing is the same described in the indictment.” On the same page, same author, this case is given : “If a man is charged with stealing a black horse, the allegation of color, though unnecessary, being descriptive of that which is material could not be rejected.” (3 Starkie’s Ev. 1531,1 st ed.) Other cases are cited. {Roscoe’s Ev., 102, note 1.) One of which cases is the case of an indictment for coining, alleging possession of a die made of iron and steel, where the proof was that it was made of zinc and antimony.
    
    It was held in the case of the United States vs. Porter, 3 Day’s cases, 283, that an allegation in an indictment which is not impertinent or foreign to the case must be proved, though a prosecution for the offense might be supported without such allegation.
    2. The circuit judge erred in refusing to instruct the jury that the proof should show the notes alleged to have been in defendant’s possession were of the description specified in the indictment to authorize a conviction. >
    3. The court erred also in refusing to instruct the jury that they should believe from the evidence that the defendant intended to pass the counterfeit money in Kentucky. It is not an offense against the statute to have an intention in Kentucky to pass counterfeit bank notes in another state.
    
      A. A. Burton, on the same side—
    The conviction in this case ought to be reversed for these reasons:
    1. The indictment charges that the forged bank notes purported to be on Kentucky banks. There was no proof offered of any such notes, but of notes that purported to be on a bank in another state. This variation was fatal. (Archibald’s Grim. PI. 438-42; 1 Ckilty’s Criminal Law, 233 — 4; 3 lb., 1041; 2 East. PI. Crown, 882; 2 Starkie Ev. 467-8; 1 Green-leaf Ev., section 65; 3 lb., sec. 108; United States vs. Cantril, 4 Cranch, 167.)
    Section 135 of the Criminal Code of Kentucky clearly contemplates a true description of the bank note in all cases, unless it is withheld or destroyed by' the accused, by providing that a misdescription shall not be fatal when it is so withheld or destroyed.
    The Code does not dispense with charges of substance in an indictment that were material before its adoption. Section 128 nor no other provision contemplates any such change. On the contrary, it affirms in effect the law and practice as it existed at the time of its adoption. (Sections 121-3.)
    The indictment is worse than if it had only contained a charge in general terms of having forged or counterfeit bank notes, with intent,, &c., without naming the bank or describing the notes, which is palpably bad; because charging one kind or description of notes tends to mislead and deceive the accused. He was notified by the indictment to answer one charge, and is proceeded against for another. . When he was notified to defend himself against a charge of having forged Kentucky bank notes, he was not likely to prepare himself against a charge of having forged Virginia bank notes.
    2. There was no proof offered of the existence of any such bank as that upon which the notes purported to be. Its charter should have been produced, it being an institution of another state, and foreign to Kentucky. There could have been no valid conviction unless the bank had been a lawfully incorporated bank of this or some one of the United States, (jRev. Stat., -255.)
    3.' A new trial should have been granted for the misbehavior of the jury. No prisoner is safe in the hands of such a iury. {Criminal Code, section 242.)
    A new trial ought to have been granted for the deception practiced on the accused by the witnesses for the prosecution.
    A reversal is asked.
    
      J. Harlan, for appellee—
    Section 129 of Code of Practice provides that “no indictment is insufficient, nor can the trial, judgment, or other proceeding thereon be affected by any defect which does not tend to the prejudice of the substantial rights of the defendant on the merits.”
    The evidence for the prosecution was in substance as follows: The first witness proved that defendant pulled from his pocket a large roll of bank bills, and handed one of the bills to the witness, who examined it as well as he could, it being in the night time, and “thought it a bill on some of the banks of Virginia, and took it to be counterfeit.” Defendant told witness he might have as much of that kind of paper as he wanted, that it was counterfeit, and that witness could pay defendant one dollar of good money for every dollar of it that witness passed. A letter from the defendant to an uncle living in Arkansas, inclosed a bank bill, in which the writer says: “I want you to take this bill and see if you can pass it, and I want you to write to me whether you know anything of the like dr not. If you think the chance would be good I would come to see you next fall and fetch a quantity of different kinds. I know a few things, and keep this to yourself.”
    The second witness said, “that defendant offered to let him have counterfeit bank notes, two dollars for one of good money, and he saw a stamp at defendant’s house that defendant showed to him, and told him it was a tool to make counterfeit half dollars with. He, (defendant,) showed one counterfeit bank bills, defendant said, one of which I thought was a ten dollar Kentucky bill, and said he had made it profitable.”
    Another witness proved that defendant exhibited to him a large roll of bank bills, which defendant said were counterfeit, and proposed to let witness and another man who was with him have some of it, and proposed to them to come another day for that purpose, but witness did not go.
    The fourth witness said, “he never saw defendant háve any counterfeit bills, but defendant proposed to him to go into the business, and told witness that he had bought some cows with counterfeit money, and had about eleven hundred dollars of bank bills or notes.”
    The defendant proved by several witnesses general good character prior to the commencement of the prosecution. The commonwealth then proved that defendant had been suspected for two years previously of being concerned in the passing of counterfeit money.
    1. I contend that the evidence authorized the jury to find the defendant guilty. The charge is for hav*mg in his possession counterfeit bills representing the genuine bills of certain banks in Kentucky. One witness said that defendant had shown him some counterfeit bank bills, “one of which he thought was a ten dollar Kentucky bill.” This, with the other evidence in the case, authorized the jury to find the defendant guilty. The possession of a single counterfeit biilt, with the intention of passing it as genuine, constitutes the offense. (Revised Statutes, 255.)
    The statute does not require any evidence that the banks were duly chartered. If the notes purport to be on banks that never had any existence, the punishment is the same as if the banks were duly chattered. (Rev. Stat. 256, sec. 3.)
    2. The alleged misconduct of the jury, according to the modem authorities, is not sufficient to set aside the verdict, unless evidence had been introduced conducing to prove that some improper influence had been exercised. No such evidence was offered.
    As the evidence establishes, beyond doubt, the guilt of the defendant, and as there is no defect which tends “to the prejudice of the substantial rights» of the defendant on the merits,” the judgment should be affirmed.
    October 4
    
   Judge Stites

delivered tlie opinion of the Court.

James Clark was indicted under the Revised Statutes — Sec. 2, Art. 10, Chap. 28, title Crimes and Punishments — “for having unlawfully in his possession, on 4 the 1st day of December, 1852, twenty counterfeit 1 bank notes of the Farmers Bank of Kentucky, each 1 of the denomination of twenty dollars; ten counter- ‘ feit bank notes on the Farmers Bank of Kentucky, 5 of the denomination of ten dollars; twenty one dollar bills on the Northern Bank of Kentucky; twen- ‘ ty two dollar bills on the Farmers Bank' of Ken- * tucky; twenty one dollar bills on the Farmers Bank ‘ of Kentucky; twenty twenty dollar bills on tho * Southern Bank of Kentucky; twenty ten dollar bills» ‘ on the Southern Bank of Kentucky; all of which «was payable at the different offices of discount and ‘ deposit of said banks in this State, and which said ‘ counterfeit notes, whilst thus in his possession, were * known to him to be counterfeit, and were held by ‘ him with intent to defraud, by selling and passing 4 the same.”

• Upon trial in the Circuit Court he was convicted, and sentenced to imprisonment in the penitentiary for two years, and from that judgment has appealed to this court.

The main ground relied on. for reversal is alleged error of the Circuit Court in granting and refusing instructions to the jury.

The evidence conduced to show very clearly that the accused, about the time alleged, had in his possession counterfeit bank bills, with an intent to pass the same; but no witness could state that the bills thus in his possession purported to be bills upon either of the banks mentioned in the indictment. One witness proved that the bills he saw were, as he thought, “on some of the banks of Virginia.” And another stated that the accused exhibited to him some counterfeit bank bills, ‘one of which he thought was a ten dollar Kentucky bill.’ There was other testimony showing that he had a number of counterfeit bank bills in his possession, with an intent to pass them fraudulently, but none as to the description of the bills.

Upon this evidence, among other instructions asked by counsel for the accused was the following: “That unless the jury should believe from the evi- ‘ dence, to the exclusion of a reasonable doubt, that ‘ the defendant, before the finding of the indictment, khad in his possession counterfeit bank bills, or a ‘ counterfeit bank bill, of the description and denomi- nation mentioned in the indictment, with the inten1 tion of passing the same, they should acquit the ‘prisoner.” This instruction was refused by the court, and an exception taken to the refusal by the defendant.

1. “Where a person or thing necessary to be mentioned in an indictment is de scribed with circumstances of greater particularity than is requisite,yet those circumstances must be proved, otherwise it would not appear that the person or thing is the same described in the in dictment.” (See Wharton's Am. Crim. Ev., 3d edition, p. 101; Dorsett’s Case, 5 Roger’s Rec. 77; 6 Maine, 476; United States vs. Porter, 3 Day's Cases, 283.)

2. The indict-1 meat was for having counterfeit bills in possession, of a certain description, purporting to be on certain named banks, with the intent to pass them; the proof failed to show that the notes which defendant had purported to be on any of the banks specified — such proof was necessary to author ¡ze a conviction, and the court Bhould have so instructed the jury when requested.

The doctrine seems to have been well settled in England and this country, that in criminal cases, although words merely formal in their character may be treated as surplusage, and rejected as such, a descriptive averment in an indictment must be proved as laid, “and no allegation, whether it be necessary or unnecessary, more or less particular, which is descriptive of the identity of what is legally essential to the charge in the indictment can be rejected as surplusage.”

So where a person or thing necessary to be men-: tioned in an indictment is described with circumstances of greater particularity than is requisite, yet those circumstances must be proved, otherwise it would not appear that the person or thing is the same described in the indictment. (Wharton’s Am. Crim. Law, 3d edition, 231; Roscoe’s Criminal Evidence, 101.)

Thus, on an indictment for coining, there was an alleged possession of a die made of iron and steel, when, in fact, it was made of zinc and antimony. The variance was deemed fatal. (Dorsett’s case, 5 Roger’s Rec. 77.) On an indictment for stealing a pine log, marked» with a particular mark, it was held that the mark must be proved as alleged, and the description could not be rejected as surplusage. (6th Maine, 476.) And in the case of the United States vs. Porter, 3 Day’s cases, 283, the court held, that an allegation in an indictment, not impertinent or foreign to the cause, must be proved, though a prosecution for the offense might fee supported without such allegation.

Here the description of the bills, as set forth in the indictment, if not essentially necessary to the prosecution under the statute referred to, is neither impertinent or foreign. And having been .alleged, however, it devolved upon the commonwealth to prove, as alleged, that the defendant had a bill or bills of the description and denomination stated, with intent to pass the same.

3. It is not necessary that the intention «hould be to pass counterfeit bills in the State of Kentucky — th e statute is general, embracing the intention to pass them at any .place.

In refusing to submit that question to the jury, as asked for in the instruction referred to, the Circuit Court, in our opinion, erred to the prejudice of the accused.

In reference to the instruction requiring the jury to find that the accused intended to pass the bills in this state, such intent is not demanded by the statute, and that instruction was properly refused. The offense created by the statute, is having counterfeit bank bills in possession, with an intent to pass them, without reference to the place where such passing shall occur.

Th.e action of the Circuit Court upon the ground for a new trial, for alleged misconduct of the jury, is not embraced among the errors that are subject to revision by this court, and need not be noticed.

For the reasons assigned, the judgment is reversed, and cause remanded for a new trial in conformity with this opinion.  