
    *William Hummel v. The State of Ohio.
    1. In an indictment for larceny, it is sufficient to describe United States treas ury notes, as “ promissory notes of the United States given for the payment of money,” adding their denomination and value.
    2. In such an indictment it is not a misdescription of the notes of national banks to denominate them “ national bank-notes, commonly called national currency notes, being obligatory promissory notes of the national currency issue, given for the payment of money.”
    3. It is prima facie evidence of the genuineness of such notes that they pass currently in the community as genuine.
    
      4. It is not error in the court to refuse to give its opinion upon the weight of testimony, or to refuse to exclude from the jury evidence tending to prove the issue, but which is insufficient of itself for that purpose.
    
      5. When oral evidence of the contents of an instrument has been received, without objection, it is not error in the court to refuse to exclude such evidence after the cause has been argued to the jury.
    6. Where a question put to a witness is rejected by the court as incompetent, in order to make the rejection a ground of error, it must appear what was-proposed to be proven, and that it was something, the rejection whereof would be prejudicial to the plaintiff in error. G-andolfo v. State, 11 Ohio St. 114, and Hollister & Smith v. Resnor, 9 Ib. 1, followed.
    Error to tbe court of common pleas of Holmes county.
    The case is sufficiently stated in the opinion of the court.
    
      I/. F. Critchfield (with whom was G. F. Voorhies'), for plaintiff in error.
    1. The indictment is bad. No one of the counts will support the judgment below.
    The first count is bad, because of the general description given, to "United States notes. ‘ ‘ Four promissory notes of the United. States.” What promissory notes ? Treasury notes, fractional currency, or what? The law of Congress calls none of them “ promissory notes.” If they may be called such, then any paper issued by authority of Congress may be called promissory notes.
    “ Four national bank-notes.” They are not known to the law as such, but as “ obligatory promissory notes ” of the association which, upon conditions precedent, may issue them. And the indictment should allege that these conditions had been performed. *“ Commonly called national currency notes,” implies a negative — that is, that they are not so in fact or in law.
    The second count is bad also, for like reasons.
    The third and fourth counts are also bad, for uncertainty, indefiniteness, and misdescription.
    2. The court erred in ruling out the evidence offered by the plaintiff in error to prove the value of the so-called national banknotes. The act of Congress of 1863-64, section 33, page 106, provides that such notes shall be received at par for certain specified purposes, but as to all others not enumerated, the paper is left subject to the fluctuations of trade and depreciation according to the judgment of men. The section makes a distinction between such notos and legal-tender notes and gold and silver. Whether there be any standard of value or not, the indictment alleges value, which is an issuable fact, and it is a question for the jury whether any circumstance invalidates the face value, such as that the notes are counterfeit and of no value, or mutilated so that they could not be identified for redemption, or that they were post-notes and such as the bank was not authorized to issue. The question was proper, and in refusing to permit it to be answered, the court prevented ■the plaintiff in error from proving that the notes were even counterfeit.
    3. The court erred in refusing to charge the jury as to the identity of the money. When the chain of-evidence was broken, the testimony was incompetent, and ought to have been ruled out. 'The charge requested was that the testimony, of itself, was incompetent, and that the jury, upon that alone, could not find a verdict. This the court refused, and left to the jury this partial and incompetent testimony, as though it was complete. The charge given upon this subject assumed that proof of certain facts had been made. This was calculated to give the jury the impression that ■the court was deciding the sufficiency of the facts.
    
      4. The court erred in refusing to charge, as requested, as to whether the four notes offered in evidence as national bank-notes were such. It is always a question whether the money or notes offered in evidence support the allegations of the indictment. The notes had been offered in evidence, and the ^witness, with the notes in his hand, had testified about them, and this evidence went to the jury, the court refusing to rule it out. Whether the notes themselves were in evidence or not, the testimony in regard to them was. The instruction asked was pertinent to the case, and the court should have given it, in substance, to the jury.
    5. The court erred in refusing to charge the jury, as requested, as to the genuineness of the money, and in the charge given. It was incumbent upon the state to prove the genuineness of the money. We admit that if the notes passed and circulated as money, that it is evidence of their genuineness; but the court assumed that the mere fact that the alleged owner of the notes had them in his possession, and that they had been stolen, was evidence of their circulation as money, when it was no evidence at all, and no other evidence was given that the notes had been circulated as money.
    6. The court erred in refusing to instruct the jury, as requested, “ that the best evidence of the identity of the money is the money itself, and when the state could prove it they must do it. Yerbal evidence is not sufficient where the paper is not lost or beyond the power of the state to produce it.” This refusal was not justified by the fact that when the notes were offered by the state they were ruled out on objection of the defendant. His legal rights should not be allowed to work him injury. The verbal evidence of the identity of the money was incompetent.
    
      W. JS. West, attorney-general, for the state:
    1. The only rational objection to the first and second counts of the indictment is, that the description is set out with more particularity than necessary. Of this, however, the plaintiff in error has no right to complain. The third and fourth counts are good.
    2. The proof sufficiently showed the kind of money stolen, and it justified the verdict.
    Proof of the larceny of United States notes and national banknotes implies: (1.) Their genuineness; (2.) That they circulated and were intended to circulate as money.
    
      *3. The prisoner did not object to the verbal evidence in time, even if it had been improper, and it was not.
    The bills were ruled from the jury on the prisoner’s motion, and:he can not complain.
    4. Evidence of the “par value ” of “ money ” in a criminal case is novel. When greenbacks were half-price the question was spoken-of, but the profession agreed that “ money ” was “ money,” no matter how it compared with gold. The government money and national bank money was always denominated “ dollars,” no matter1 what its discount.
   Welch, J.

The plaintiff in error was indicted for stealing four' United States treasury notes, and four national bank-notes, of the denomination and value of five dollars each; and one promissory note of an individual for five dollars, and of the value of five dollars ; amounting in the whole to forty-five dollars. He pleaded not guilty, and upon trial was convicted and sentenced to the penitentiary. He now prosecutes a writ of error here to reverse the judgment.

The first error assigned is the alleged insufficiency of the indictment. The verdict of the jury was a general verdict, and therefore the indictment is sufficient to sustain the conviction and sentence, if either count is good.

The indictment contained four counts, and it is contended that they are all bad. Without undertaking to pass upon the alleged faults of the second, third, and fourth counts, it is sufficient to say that we are satisfied the first one is good. The exception taken to it is, that it misdescribes, or imperfectly describes, the treasury notes and bank-notes alleged to have been stolen.

The treasury notes are described in the first count as “ promissory notes of the United States, given for the payment of money,” etc., giving the denomination and value. It is contended that this description is defective, because it does not show what kind of promissory notes of the United States they were: whether treasury notes, or fractional currency, or what else. We think the objection is not well taken, and that the description is sufficient. It is not necessary to set forth their tenor, or date, or the date or particular ^provisions of the law under which they were issued. The description given brings them within the statutory definition,. ■and that, with a specification of- their denomination and value, is sufficient.

The bank-notes are described as “ national bank-notes, commonly •called national currency notes, then and there being obligatory .promissory notes of the national currency issue, given for the payment of money,” etc. If we understand the objections made to this description, they assume that the words national banknotes,” employed in it, mean national notes of a bank, and not notes •of a national bank. The words are undoubtedly to be understood in the latter sense. The notes are bank-notes, and not national notes ; and they are so described in the indictment, as we read and understand it. The objections' are: 1. That this is a misdescription ; and, 2. That there is a repugnancy in first calling them national bank-notes, and then saying that they are commonly called •national currency notes. The argument in support of the latter objection is, that to say they are commonly called national currency, is to admit that they are not national currency; and that ■they are, therefore, first described to be national in their character, and then admitted not to be national. We confess we are unable ■to see the force of this logic. It rests on false' assumptions. It is not true that the notes are described as national notes; and it is not true that there is any such rule of law as that assumed, that to say anything is commonly called by a certain name, is to admit that it is a false name. We know of no such rule.

The other assignments of error relate to the rulings of the court in regard to the testimony, and the charge given to the jury.

On the trial, the prisoner’s counsel asked one of the witnesses what was the value of one of the five dollar national bank-notes, saying that his purpose was to prove the “par value ” of said four bank-notes. This question was objected to by the state, and ruled out as incompetent; which ruling was excepted to by prisoner’s counsel, and is now assigned for error. Under the decisions in Gandolfo v. The State, 11 Ohio St. 114, and Hollister & Smith v. Resnor, 9 Ib. 1, this is *no good ground for reversal. It was held in those cases, that, in order to make the error fatal, it must be shown by the record what was proposed to be proven by the answer to the question propounded, and that it was something material to the plaintiff in error. Here the only object proposed was to show the “par value ” of the notes, which is not material, and is in fact no object at all. The par value of a note is its amount. The par value of a five dollar note is five dollars. ■ Perhaps the word “par ” got into the proposition inadvertently, and ought to be disregarded. We can hardly assume so much; especially in a case like this, where it is evident that no answer to the question could have been of any ultimate benefit to the plaintiff in error. For,, although the court can not take judicial notice of the fact, yet everybody knows that national bank-notes are at par. They are of equal value with legal-tender notes, which are the standard of value. However this may be, the case is not brought within the-rule referred to, because it does not appear that it was proposed to-show that the note was of less value than five dollars, and that,, therefore, the answer would be material to the prisoner.

The money alleged to have been stolen was found upon the prisoner when he was arrested, and the state called witnesses to identify it, by tracing it from hand to hand, from the time it was taken, from the prisoner till produced in court; but one or more links in the chain of proof were wanting. The prisoner’s counsel, after the-testimony had closed, moved the court to instruct the jury that the-proof thus made was insufficient, and must be disregarded by them. This the court refused, and instructed the jury that it was for them to say, from this and all other evidence in the case, whether the-identity of the money had been established. This refusal and. charge of the court are also assigned for error. We think the-court was clearly right, both in its refusal and its charge. The-court is not bound to give its opinion upon the weight of testimony, or to exclude from the jury evidence tending to prove the issue,, merely because it is, in the opinion of the court, insufficient. The weight and sufficiency of. testimony, upon a question of the kind involved, are matters for the jury, and were properly left to them. ^During the trial, the prosecuting attorney, after giving-evidence tending to prove the genuineness of the notes in question, offered them in evidence to the jury. The prisoner’s counsel objected, and the court excluded the notes. The state then, without objection by prisoner’s counsel, gave oral evidence of the contents-of the notes. After the evidence had closed, and the case had been argued, the prisoner’s counsel asked the court to instruct the jury that the “notes given in evidence were not national bank-notes,” and to charge them that they must disregard the oral evidence of the contents of the notes. The court refused both requests, and told the jury that no such notes were in evidence. This is also-assigned, for error — on what maintainable ground, we are unable-to see. The court surely was right in saying that no such notes-were in evidence, for there were no notes of any kind in evidence. Notes had been offered in evidence, but were rejected on the prisoner’s own motion. After rejecting the notes, and assenting to the admission of the secondary evidence of their contents, and after the case had gone to the jury, it was surely too late to ask the-court to rule out the secondary evidence. This would have been to entrap the other party. Had the objection been made at the proper time, the state might have availed itself of other evidence.

Another assignment of error was this: No evidence was offered by the state of the value or genuineness of the notes in question,, or that they currently passed as money, except that the alleged owner of the notes had taken them in the way of trade. Counsel for the prisoner requested the court to instruct the jury “that the state must prove the money alleged to have been stolen to be genuine money.” This the court refused, but said to the jury “that if they were satisfied that the money passed and circulated as money in Ohio, it was not necessary for the state to prove its genuineness, but that it was competent for the defendant to show, as a defense, that the money was not genuine.” We think the court did not err. in refusing this charge, or in the charge given.

Judgment affirmed.

Hat, C. J.,and White, Brinkerhoee and Scott, JJ.,. concurred.  