
    James Anderson v. State of Ohio.
    An indictment for aiding to pass a forged paper must set forth that the accused knew it to be a forgery.
    This was a writ of error to the court of common pleas of Stark county, made returnable to the court in bank. The case was this :
    Anderson, the plaintiff in error, was indicted in Starke county, for aiding and abetting a person, calling himself George Stevens, to utter and publish, as true and genuine, a certificate of deposit in the following words:
    “ Columbiana,-Bank oe New Lisbon, May 25, 1836.
    “John Mendenhall has this day deposited seven thousand four hundred dollars, for the use, and subject to the order of himself and return of this certificate. R. \Y. Snodgrass, Cashier.”
    
    
      Which certificate was fraudulently altered from four hundred dollars to seven thousand four hundred dollars.
    The indictment contained two counts, and the material allegations of both were, in some words, as follows:
    . “And the grand jurors do further find and present tuat *James Anderson, late of the county of Stark aforesaid, on the seventh day oí June, in the year eighteen hundred and thirty-six, at Stark county aforesaid, did aid, abet, and procure the said person, calling himself George Stevens as aforesaid, to utter and publish the altered, false, forged, and counterfeited certificate of deposit, contract, and promise, for the payment of money as aforesaid, the said uttering and publishing as aforesaid, being an offense made criminal by a law of the State of Ohio aforesaid, contrary to the form of the statute,” etc.
    Upon the trial of this indictment, the defendant was found guilty, and sentenced to confinement in the penitentiary; tore-verse which sentence this writ of error was brought..
    The errors assigned are stated in the arguments of counsel.
    Goodenow, for the plaintiff in error:
    There are but throe points embraced in the assignment of errors, in this cause, which I deem it necessary to argue; and to these I shall say but few words.
    1. Can an aider, abettor, or procurer be indicted, tried, convicted, and sentenced, without any proceeding being first had against the principal? If the law or practice is settled in this state on that point, I am as yet unadvised of it. In England, by the common law, aiders and abettors were indictable as principals in the second degree; and they must be proven on trial to be actually present, or constructively present; that is, at hand, so that they could afford aid and assistance to the principal in the execution of the plan of operations. But accessories, before or after the fact, could only be indicted and punished after the conviction of the principal. A procurer is an accessory before the fact.
    Our statute for the punishment of crimes provides, 29 Stat. 142, sec. 34, “that if any person shall aid, abett, or procure any other person to commit any one of the offenses,” etc. Who, then, let me ask, is an “aider, abettor, or procurer,” in the meaning of the act? Shall we resort to the common law for a definition of the crime? Suppose we do, where do we look for the mode or manner in which he shall be tried? He must be indicted, to be sure ; but when indicted ? And what practice is to be adopted in bringing the party to trial, and in the conduction of the trial ? Is he to be indicted in form, in ^manner, in language, the same as a principal? Certainly not; for the legislature have adopted a distinction between the principal and the accessories, and aiders and abettors; and for that distinction and the various steps and modifications which that distinction pursues from the incipient stage of prosecution to conviction, the court have to resort to the common law, because they have no other guide given them. But by that common law, the principal is indicted and prosecuted in one way, and the aider, abettor, and procurer in another; and the latter can, in general, be convicted only after the principal has been convicted; because on the conviction of the former, as the substratum, must the conviction of the latter rest. I am aware that what was thought in England as a defect in the common law has been remedied by the statutes. How far any of the statutes of England, or the common law of the realm, have been adopted, or are considered binding upon this court, as to crimes, or the modes of trial or punishment, I am' ignorant. Perhaps there is a discretion lodged in this court to adopt as much common law or English statute law as may answer the purpose to insure a conviction; I know not and can not say or conjecture. But this, I have ever supposed to be an immutable principle in our jurisprudence, that the court expounded and applied the law as they found it in the code of the state. If that be a sound principle in our system of justice, the court will have to create, import, or borrow some law, before they can affirm as legal, just, and right, the conviction of Anderson on the indictment before them, as an aider, abettor, and procurer.
    
    2. Is the forging or passing a forged “ certificate of deposit” a crime punishable by the laws of Ohio ?
    “ Penal statutes ought to be read according to the ordinary import of the language, and if a term would equally admit of two constructions, the one attended with the mildest consequences ought to be adopted.” “A check is not, either in common parlance, or in the technical language of the books, called a bill of exchange or promissory note, though it may, in some respects, have the same legal operation.” The People v. Howell, 4 Johns. 301. There is no need to cite authorities on this point; it is to me so palpable, I should do injustice to my own sense of propriety to inflict citations and quotations upon the court. But, I will ask, is a “certificate of deposit-’ (the name of a bank instrument of writing much older than the State of Ohio, and as well known as a bill of ^exchange or bank bill), “ a contract and promise for the payment of money," in the language of the indictment? The first count of the indictment, however, calls it by its true name, adding “for the payment of money,” and “being for the payment of money.”
    The allegations in the indictment, as they of themselves constitute no part of the law, nor of the facts which constitute the crime, can neither extend nor enlarge the words of the statute, nor contract or expand the name or style of the instrument itself, that it may suit the language of the statute. Is a “ certificate of deposit,” bearing its name on its face, and described in the indictment as a “certificate of deposit,” “in common parlance or in technical language,” a contract and jn'ornise for the payment of money; “though it may, in some respects, have the same legal operation.” Is it any more so than a bank bill, bank note, or check? I reckon not; yet the legislature have thought it necessary to enumerate these latter. But, if a bank “certificate of deposit” is, under a penal, and highly penal statute, to be considered a “contract and promise for the payment of money,” because it has, “in some respects,” the legal operation of the contract lor the payment of money, then, indeed, it was needless for the legislature, in the act for the punishment of crimes, to have inserted the words bond, bank bill or note, check, draft, bill of exchange, promissory note, and divers other instruments of writing therein enumerated. It would have been better that they should have loft the field entirely open, that this court might, according to their enlightened discretion, bring everything which might bear the construction of a “contract for the payment ol money,” in for the spirit of the law, under that general clause. However, it must be unnecessary to pursue any further illustrations. “ The court sit here to expound and apply the law, not to make it.”
    Is not an averment of the scienter in an indictment against a person for aiding, abetting, and procuring another to utter and publish a forged and counterfeit certificate of deposit indispensably necessary? It surely can not be necessary to quote authorities or make an argument on this point. The indictment itself contains that averment against the principal, Stevens. And why not, as to Anderson ? He may be as innocent as a “ babe unborn ” for aught that appears in the indictment. He is nowhere charged with a knowledge of the ^counterfeit character of the certificate of deposit; he is therefore charged with no crime. But why need. I argue ? “ This court sit here to expound and apply the law, not to make it.”
    Belden, for the state:
    The first objection to said indictment is, that it is no crime, in the State of Ohio, to utter and publish a false, forged, and altered certificate of deposit, knowing the fact. It is contended by the state that a certificate of deposit is a contract for the payment of money ; that a suit at law could be maintained on such instrument; that it is covered by the time or contract for the payment of money. With the same force, it might be argued that the forging a due bill is no crime, because it is not mentioned in so many words in the statute.
    The second objection is, that the principal had not been indicted. The statute -settles that question. The aiding, abetting, or procuring the commission of crime is made punishable without reference to the conviction of the principal.
    The third objection seems to have more plausibility. The indictment charges James Anderson of aiding, abetting, and procuring one Geo. Stevens, a person unknown, to utter and publish a false, forged, and altered certificate of deposit; but do.es not directly aver the fact that he knew it was a false, forged, and altered certificate.
    The question is asked, if that be not an indispensable averment, the same averment having been made against the principal? The statute answers the inquiry. In ease of principal, the statute makes the scienter a part of the crime, or the crime itself, in direct and positive language; but not so in ease of an abettor and procurer of the commission of a crime. The legislature understood that knowledge was necessarily included in the language, “ shall aid, abet, and procure,” etc. Therefore the scienter was omitted in the section against abettors. This position is fully sustained in the case of The King v. Fuller, 1 Bos. & Pul. 187.
    It would not for a moment be contended that an indictment would be good against an individual for bartering counterfeit bank bills, receiving stolen goods, for harboring a thief, etc., unless there was an averment of knowledge. The statute requires this; but would it not be ridiculous to aver that A. committed an assault and battery, knowing the fact; that he ^persuaded and procured another to commit willful and corrupt perjury, knowing the fact.
   Judge Wood

delivered the opinion of the court:

This case presents a single question for our decision. The act for the punishment of crimes, passed March 7, 1836, provides, among other things, “that if any person shall utter and publish as true and genuine any contract for the payment of money or other property, or any acquittance or receipt for money or goods, with intent to defraud, etc., he shall be deemed guilty of forgery,” etc. Section 36 of the same act provides, “that if any person shall aid, abet, or procure any other person to commit any of the offenses, by this act made criminal, every person so offending shall, upon conviction thereof, be imprisoned in the penitentiary, etc.

The draftsman of this indictment has held it sufficient to pursue, literally, the statutory definition of the offense, and, as it does not, in express terms, make a knowledge of the false character of the paper a constituent part of the crime, it was thought unnecessary to aver that fact in the indictment. Is such averment necessary? Wo are of opinion that it is. The indictment must state every circumstance of knowledge, intention, or action that constitutes the criminal design. It is the intention that gives character to the action, and makes that criminal which would otherwise be exempt from guilt.

There can be no intention without knowledge; hence the necessity of the allegation, that the accused, in this case, knew that the paper he aided to pass off was a forgery. It must be manifest to every one that Anderson might, with entire innocency, have taken an active agency in obtaining cash for the certificate of deposit in question. He might suppose it to be genuine, and all he did be grounded upon that belief. The statute does not attach criminality to one, who, in honesty and good faith, becomes instrumental in passing off a forged paper. This record charges the fact, that the paper was a forgery, and that Anderson aided Stevens to pass it. No knowledge that it was a forgery; no design to defraujl another person, is charged against him; so that, in the terms of indictment, nothing is alleged against him that can be regarded as criminal. Upon the trial of this indictment, no proof of knowledge or intention to defraud could legally be received; for the prosecutor can not be permitted to prove the constituents of crime, *when he has not set them forth and made them part of his

written accusation. The accused is only held to come prepared to meet the specific charge, and when the gist of the offense is knowledge and intention, no proof of either can be received, if there is no averment that they entered into and formed a part of the original transaction.

The judgment js reversed,  