
    * Commonwealth versus Moses Atwood.
    Words in an indictment, which may have been the ground of the verdict, cannot be rejected as surplusage to support a conviction.
    The defendant was indicted for that he, with one other person . to the jurors unknown, on, &c., at, &c., with force and arms had in their possession a certain false, forged, and counterfeit promissory note for the payment of money, purporting to be a promissory note of the president, directors, and company, of the Mechanics and Farmers’ Bank, in the city of Albany, a corporation by law there established, and purporting to be signed by, &c., which false, &c., promissory note is to the following purport and effect, viz., &c., and the said M. A. and the said other person to the jurors, &c., at, &c., on, &c., with force and arms did utter and publish as true the said false note to one A. E., he, the said M. A., and the said other person then and there well knowing, &c., with intent to injure, &c., against the peace, and the form of the statute, &c. In a second count, the indictment charged that the said M. A. did bring into, and had in his possession, within this- state, a great number of, viz., ten false, forged, and counterfeit bills and notes, in the similitude of the bills and notes payable to the bearer thereof, issued by and for the president, directors, and company, of the Mechanics and Farmers’ Bank, in the city of Albany, a corporation by law there established, of the denomination of twenty dollars, and others in the similitude of the bills and notes issued by the president, directors, and company, of the Boston Bank, a banking corporation by law established within this commonwealth, and of the denominations of ten dollars and five dollars, for the purpose of rendering them current as true, and with intent to pass the same, he, the said M. A., well knowing, &c., against the peace, and the form of the statute, &c.
    The jury returned a verdict of not guilty on the first count, and of guilty on the second count, in the indictment.
    The defendant moved in arrest of judgment, because, in the averment of the defendant’s possession of bills and notes in the similitude of those issued by the president, &c., of the * Boston Bank, it is not -averred that they were false, [ * 94 ] torged, and counterfeit.
    
      Bigeloiv, for the defendant,
    cited 2 Hale’s H. P. C. 184, 193. — 4 Co. 44, Vaux’s case.
    
      Morton (Attorney-General)
    argued that the allegation that the defendant had in his possession a number of false, forged, and counterfeit bills might well be extended to the Boston bills, of which it is averred that he knew them to be false. Or the whole allegation respecting the bills of the Boston Bank might be rejected as surplusage ; and then the charge will stand sufficient as to the bills of the Albany Bank.
   Per Curiam.

We cannot reject as surplusage what may have been the ground of the conviction. A substantive charge, not sufficiently alleged in an indictment, can never be rejected as surplusage. Neither can we apply the allegation of falsity, &c., concerning the Albany bills, to the bills of the Boston Bank. It is not easy to fix any meaning to the word others; but it would be going too great a length to say that it included the words false, forged, and counterfeit. If the allegation, that the defendant well knew the bills to be false, &c., applies to the Boston bills, then no scienter is laid as to the Albany bills. It may be that the whole evidence at the trial applied exclusively to the Boston bills; and then we are called upon to reject as surplusage the only allegations upon which the conviction was had. The indictment is too loose and untechnical to be supported,

Judgment arrested. 
      
      
         1 Chitty, Crim. PI. 661.— Commonwealth vs. Morse, 2 Mass. Rep. 130. — Brown vs. Commonwealth, 8 Mass. Rep. 69.
     