
    Greeson v. The State,
    5 Howard, 33.
    IÍOBBERY.
    Where it appears from the whole record that the prosecution was in the name of the state, a formal statement, in the indictment, that it was found by the authority of the state, is not necessary.
    
    Where it appeared by the record that a foreman was appointed, and that the indictment was returned, signed by him, and the caption stated that the grand jury returned the bill into court by their foreman, it was held sufficient evidence that the hiU was returned by the authority of the grand jury. 
    
    
      At common law, bank notes are property, and are the subject of larceny or robbery. Were it otherwise, they are made so by the 20th section of the act of 1822, which provides “ that robbery or simple larceny of obligations, or bonds, bills obligatory, or bills of exchange, promissory notes for the payment of money, etc., shall be punished as simple larceny or robbery of goods and chattels, etc. Bank bills or bank notes are promissory notes of the corporation which issues them.
    
    Where the record states at what court, at what term, and in what county the grand jury were empanelled and sworn, it sufficiently appears that they were sworn in and for the county, and the omission to state that they were then and there sworn, is immaterial, and does not affect the validity of the indictment.
    Where the property feloniously taken was laid in the indictment as the property of Richard Gaines, but was afterwards recited as the property of the said Robert Gaines, it was held to be a mere clerical error, and that it did not constitute repugnance.
    Error to the circuit court of Tishomingo county.
    The defendant was indicted in the circuit court of Tishomingo county for the crime of robbery. The indictment contained but one count, and charged that the defendant, on the 1st day of June, 1838, with force and arms in and upon one Richard Gaines, feloniously did make an assault; and him, the said Richard Gaines, in bodily fear and danger of his life, then and there feloniously did put, and the following bank bills, to wit: One, one hundred dollar bank bill, payable at the branch of the Bank of Alabama at Mobile, for the payment of one hundred dollars, and of the value of one hundred dollars, the property of the said Richard Gaines ; one bank bill of the Agricultural Bank of the State of Mississippi, for twenty dollars, and of the value of twenty dollars, the property of the said Richard Gaines, then and there being found, the said sum of One hundred dollars, and the said spin of twenty dollars, secured and payable by and upon the said bank bills, being then and there due and unpaid to the said Richard Gaines, from the person, and against the will of the said Richard Gaines, then and there feloniously and violently did steal, etc.
    On this indictment the defendant was convicted.
    The 1st error assigned is that the indictment did not state that it was found in the name and by the authority of the State of Mississippi. The record stated the county, the term of the court, the time and place, and the presence of the presiding judge. It then states that Hogue, the sheriff, returned into court the venire facias, executed on the following persons (naming them), out of whom the following persons were drawn, elected, empanelled and sworn as a grand inquest to inquire in and for the body of the county aforesaid. (Then follows the names.) The record contained the following statement: “ The State of Mississippi v. John L. Greeson. This day, the fourth day of June, 1838, the grand jury returned into open court a bill of indictment in the case of the state against John L. Greeson on a charge of robbery, a true bill by Beuben Boone, their foreman.” The caption of the indictment, after reciting the state, county, circuit and term, proceeded as follows: “ The grand jurors of said state, elected, empanelled, sworn and charged to inquire for the body of Tishomingo county, aforesaid, upon their oaths present,” etc.
    2d error assigned was, that it did not appear upon the record that the same was returned into court by the grand jury themselves, or under their authority.
    3d. That there was no offense charged in the indictment which was known to the law.
    4th. That the words then and there are not prefixed to the word sworn, so as to show that the grand jury were sworn in the proper court or county, and at the proper time.
    5th. That the indictment is repugnant in alleging the bank bills specified to be the property of Bichard Gaines, and after-wards of Bobert Gaines.
    
      Mayes for plaintiff in error.
    1st. The indictment is defective in that it does not pui-port to have been found by the grand jury “in the name and by the authority of the State of Mississippi. The State v. Johnson, Walker’s B., 395 ; Allen v. the Commonwealth, 2 Bibb. 210.
    2d. The act charged by the bill of indictment is not an offense by the laws of the State of Mississippi.
    3d. The charge is for robbing, in taking from the person, etc. bank bills of value, without describing the things taken, as promissory notes purporting to be bank bills of great value, etc. How. v. Hulch, 666; Starkie’s Crim. PL 244; Damewood v. The State, 1 How. 262 ; 2 Russell on Or., 186-8 ; 2 East, 601 ; 2 Russell 143-4; Stat. 2 Geo. 2, 0. 25.
    4th. The bill of indictment is repugnant in this, that in one part thereof, the bank bills alleged to be taken are averred to be the property of Richard Gaines, and in another part in the same count, to be the property of Robert Gaines. See 6th assignment.
    5th. There is no venue as to swearing the jury. Am. C. L. Rep. 6, p. 14; 3 Johnson’s cases, 265. As to the inferior court, 1 Johnson’s cases, 179.
    6th. The indictment is repugnant in alleging that the bank notes were the property of Richard Gaines, and that the money thereby promised was due and unsatisfied; that said money was the property of Robert Gaines, and that the money, not the bills, was stolen from the person of Richard Gaines. Starkie’s Crim. PL 229, 273.
    Hughes, on the same side.
    Collins, attorney general.
    The record in this case shows all that the laws require. The grounds taken by the prisoner to reverse the judgment of the court below, are those taken in his motion in arrest, to wit: repugnance in the indictment. This is not repugnance in the eye of the law. The indictment throughout speaks of the bills as belonging to Richard Gaines, until near the close, it once only uses the name Robert Gaines, and prefixes the word “ said” to it; thus showing clearly a mere clerical error. Certainly to a certain intent in general, is all that the law requires. Arch. Crim. PI. 4, 3. And see Chit. Crim. Law, 697, note. That part of the record or indictment wdiich is certain may be referred to to explain and make certain another part of the same record or indictment. Loper v. The State, 3 How. 428.
    Bank notes are considered personal property, and as such may be the subject of robbery, like any other species of property. An individual convicted after the passage of the act of 1839, on an indictment commenced before its passage, is properly sentenced to the punishment inflicted by the penitentiary law. Thomas v. The State, Ante. p. 20. The court will not discharge a prisoner on the quashing of the indictment. Hare v. The State, 4 How. 187.
    
      
       Wharton Am. Cr. Law, 233.
    
    
      
       Wharton Am. Cr. Law, 228, 497; State v. Davidson, 12 Vir., 300; State v. Elkins, 1 Meigs, 109; Bennett v. State, 8 Humph., 118; 1 Cnitty Cr. Law, 324: Archb. Cr. Pr., 39; Spratt v. State, 8 Mo., 247; McDonald v. State, ib., 283; Gardner v. People; 3 Scam., 83; Harriman v. State, 2 Greene (Iowa), 270 ; State v. Ohumat, 20 La., 198, Hopkins v. Commonwealth, 14 Wright, 9.
    
    
      
      
         Damewood v. State, 1 How., 262 ; Wharton Am. Cr. Law. 337.
    
   Trotter, J.:

1. The first assignment of error was not seriously insisted upon in the argument, and it will be sufficient to observe that the question which it presents has been decided by the supreme court of this state, in the case of State v. Johnson, Walk. R., 395. That court held that it was sufficient if it appeared in the record that the prosecution was in the name of the state, and that a formal statement of the fact that the indictment was found by its authority was not necessary. The only object which our constitution had, in requiring that all prosecutions should be in the name, and by the authority of the state, was to exclude any other or foreign power from the exercise of this authority; and to assert the sovereignty and supremacy of the state as paramount. In this case the indictment is in the name of the state, and, of course, conducted under its authority; and this appears as fully as if there had been a formal averment of that proposition. In the case of Allen v. The Commonwealth, 2 Bibb, 210, the Court of Appeals of Kentucky considered the same objection, made under a similar provision of the constitution of that state, and decided it to be untenable. 2d. The second ground of objection is not supported by the record, that Reuben H. Boone was appointed foreman of the grand jury, and the bill is returned endorsed by him, a true bill, as such foreman. But besides this evidence of the finding of the bill, it is stated in the caption that the grand jury returned the bill into open court by their foreman, which is sufficiently certain. 3d. The third assignment of error presents a very interesting question, and one which is not entirely free from difficulty. It is, whether bank bills, eo nomine, are the subjects of larceny or robbery. It has been contended that bank bills are choses in action, being species of promissory notes, and that as such, they are not the subject of larceny at common law, and that they are not embraced by the 20th section of the act of 1822, “ for the punishment of crimes and misdemeanorsor if embraced under the term “promissory notes for the payment of money,” they have not been so described in the indictment as to fall under the operation of that act. The validity of the objection depends, therefore, upon three questions: 1st. Whether bank notes or bills be mere choses in action at common law. 2d. Whether they are included in the enumeration of written securities in the statute of 1822; and 3d. Whether the description in the indictment is sufficient. It has long been settled, that by the common law, choses in action are the subjects of larceny, on the ground that they had no intrinsic value, and did not import any property in the possession of the person who held them. At the time of the adoption of this rule, bank bills had no existence. After they came into use, they were treated and considered as imparting to the holder or bearer something more than a hare right, existing only in action. The courts began to regard them as having an intrinsic value, and as equivalent to cash or money. Thus in Miller v. Race, 1st Barron, Lord Mansfield, with the entire concurrence of the other judges of the Court of King’s Bench, held these notes to be money or cash, and not mere securities or documents for debts. He says they were treated as cash or money, in the ordinary course and transactions of business by the general consent of mankind, winch give the credit and currency of money, etc. In the case of King v. Deane Leach’s C. Cases, they are regarded in the same light. In the case of the King v. Vyse, 1 Ryan & Moody, C. C., 218, it was holden that bankers’ notes were not the subjects of larceny at common law, but that they might he described in the indictment as goods and chattels of the owners; and there are some other cases in the English courts in which the same doctrine has been maintained. It is true that some of the earlier cases in that country settle the point differently, but I take, the weight of authority to be decidedly in support of the principle settled in Miller v. Hace, supra. In the case of United States v. Moulton, 5 Mason’s C. C. R., 537, this very question arose; and upon a very full review of all the English cases, and many American, Judge Story comes to the same conclusion which the king’s bench expressed in the case of Miller v. Race. He says in the conclusion of his opinion, “ Can it be truly said that bank notes, payable to bearer, and passing as currency, have no present value in possession ? They pass as money, are received as money-—in courts of justice they are treated as money,” etc. It seems, therefore, he observes, that it would be an over-refinement to hold that they are not personal goods, etc. The case of The People v. Holbrook, 13 J. R., 90, is to the same effect. The court there say that bank bills are to be considered as goods and chattels. The statute of New York, under which that indictment was found, is in these words: “ If any person shall steal,” etc., “ any bill of exchange, bond, order, warrant, bill, or promissory note, for the payment of money, etc., being the property of another person, it shall be deemed felony of the same nature, and in the same degree, and in the same manner, as it would have been, if the offender had stolen any other goods of the like value, with the money due thereon,” etc. The indictment was for stealing bank notes, alleged to be of the goods and chattels of the owner. An objection was made to the indictment for stating the notes to be of the goods and chattels of the owner. But the court held the allegation sufficient deciding that they were goods and chattels. In Richards’ case, 1 Mass. R., 337, the same principle is settled. It has been held in New York that bank notes may be levied under an execution as the goods and chattels of the defendant. Handy v. Dobbin, 12 J. R., 220. I think, therefore, it may be safely laid down as a proposition resulting from all the authorities considered in one view, that at common law bank notes are property, and are the subject of larceny. But if this is otherwise, I am of the opinion that they are embraced by the act of 1822. The 20th section of that statute provides, that robbery or simple larceny of obligations or bonds, bills obligatory or bills of exchange, promissory notes for the payment of money, etc., shall be punished as simple larceny, or robbery of goods and chattels, etc.

A bank bill or note is a promissory note of the corporation which issues it. This I take to be a proposition not susceptible of controversy. I have attempted to show that it is not only a promissory note, but it is a species of a note to be regarded on a higher ground, and imparting higher value than a private note. It is, at any rate, a promissory note, and so expressly held by the Supreme Court of Massachusetts, in 6 Mass. R., 182, and 9 Ib., 557; and lias just been shown by the court in New York, in the People v. Holbrook. This being the case, it follows that they are the subject of larceny by the statute. This was so held by this court, as I understand the case, in Damewood v. The State, 1 How., 262; for the judge remarks, that it is unquestionably true that a bank note is a promissory note by a corporation, etc., and comes, therefore, strictly within the meaning of the generic term “promissory note.” The conclusion of the judge, from this is, that if the note charged to have been stolen had been described by proper averments, the indictment might have'been sustained.

I concur in this case fully, so far as it treats bank notes as promissory notes, and regret that I feel compelled to differ, as I do, entirely from the conclusion at which the court arrived. It is certain that it might have been properly described as a promissory note, commonly called a bank note; and yet I apprehend that unless a bank note be a promissory note, the styling it so could not give it that character; and vice versa, if it be a well-known species of promissory note, the omission to style it so in the pleadings, would not divest it of that character, any more than in declaring upon a due bill, and stating it to be simply such, the pleader would be bound to style it a promissory note, commonly called a due bill. I apprehend it would be sufficient in the latter instance to describe the note as a due bill; and for the same reason, if a bank note, in law, is a promissory note, it is so, independent of any averment to that effect. The note in that case was termed in the indictment a bank note of the Planters’ Pank, and, because it was not styled a promissory note, the indictment was held bad, and the prisoner discharged. . I cannot consent to the judgment in that case, nor do I think it warranted by the principles stated in the opinion of the court.

The case, however, fully recognizes bank notes as subjects of larceny, under the statute, and the judgment proceeded on the ground of a defective statement and description of the subject of the larceny. It is evident that the court, in that case, found their judgment on the decision in the case of The King v. Craven, 2 East. Cr. Law, 601. But I am clearly of the opinion that Craven’s case is not an authority for the judgment in Dame-wood’s case. That was an indictment under the act of George II., and that act expressly mentions bank notes, and the judgment was arrested solely on the ground of a defective description of the note; and I will now proceed to show that that case is not supported by principle or authority.

In Milne’s case, 2 East. C. L., 602, the indictment charged the defendant with stealing a promissory note for the payment of one guinea, and also one other note for the payment of five guineas. It was moved in arrest of judgment after a conviction upon this indictment, that the description was too general. But all the judges held the indictment well laid. In the case of the Commonwealth v. Richards, 1 Mass. R., 337, the charge was stealing from the person of A. B. one bank note, of the value of ten dollars, of the goods and chattels of the said A. B. And it was objected that the bank bill was not sufficiently described, it not appearing to have been issued by any bank authorized to issue bills, or that it contained any promise by any person to pay the sum of ten dollars, or that it contained such promise to pay that sum to any person, or that it was signed by the president of any bank, or countersigned by the cashier, and that from this uncertainty, the prisoner was unable to defend himself, and because a conviction would be no bar to a second prosecution, etc. But the court held the description to be sufficient. In delivering the opinion of the court, the judges observe that if a more particular description were necessary, it would be extremely difficult, and in most cases, impossible to convict, because ordinarily a person cannot testify as to the bank which issued the note. He can prove nothing more than the amount.” Holbrook’s case, 13 L. R., 90, which was before noticed, very fully illustrates the doctrine laid down in Richard’s case. In that case the indictment charged the defendant with stealing “four promissory notes, commonly called bank notes, given for the sum of fifty dollars each, by the Mechanics’ Bank of the City of New York, which were there and then due and unpaid, of the value of two hundred dollars,” etc. This was held a sufficient description. The court say in answer to the objection that the description was too general, that the “ notes being in the hands of the defendant, it was impracticable to state them in hern verba.” A general description is all that is necessary in trover. And that the form of the proceeding gave the defendant notice to be prepared to produce the notes if it should be necessary, in order to falsify the plaintiff’s evidence.

In the case of the United States v. Moulton, before noticed, the indictment charges the stealing of one bank bill of the New Haven Bank, of the denomination of five dollars, and of the value of five dollars; one other bill of the State Bank of Boston, of the denomination,” etc., pursuing the same description as in the case of the bill on the New Haven Bank. But there was no objection to this description. Hence, I conclude that the objection which has been taken to the indictment in this case is not maintainable.

4th. In regard to the objection that there is no venue stated in the indictment as to the swearing and charging of the grand jury. I deem it only necessary to observe that the record states at what court, at what term, and in what county the grand jury were empanelled and sworn. In 1 Chitty’s Cr. Law, 334, he observes that it was formerly held necessary to prefix the words then and there to the word sworn, as it would show that the grand jury were sworn in the proper county, and at the proper time. But this, he observes, is not usual, and in none of the modern and approved forms does it appear to have been thought necessary.

5th. It is lastly objected that the indictment is repugnant in the description of the offense. It is too evident to require argument that the use of the name of Robert in one clause of the indictment instead of Richard Gaines, was a mere clerical mistake of the draftsman. It could not prejudice the defendant, and if that member of the sentence in the indictment were stricken out, it would appear yet very manifest that the bank bills are laid to be the property of Richard Gaines. And so 1 conclude that the objection cannot prevail.

Let the judgment be affirmed.  