
    Jacob Reed vs. The State of Ohio.
    When the regular jury has been discharged, and there are cases yet undisposed of, the Court of Common Pleas is authorized to empannel a jury of bystanders, to try such causes.
    On the trial of a person charged with passing counterfeit bank notes, it is competent to prove he has passed other counterfeit paper, without producing it, if it be out of the jurisdiction of the Court.
    The existence of a bank whose paper is alledged to have been Counterfeited, may be proved by reputation.
    This is a Writ op Error to the Court of Common Pleas of Lucas county, made returnable before the Supreme Court for the county of Wood, and reserved for decision in full Bank.
    It appears from the record, that the plaintiff in error was tried at the July term of the Court of Common Pleas, 1846, for the county of Lucas, for uttering and publishing, as true and genuine, a counterfeit bank note, of the denomination of twenty dollars, on the Yates County Bank, knowing the same to be counterfeit, with the intent to defraud one Whittaker, &c. The record also shows his conviction and sentence to the Penitentiary for the term of six years.
    A bill of exceptions to the opinions of the Court is made a part of the record, from which it appears, that, the jury being called, the plaintiff in error challenged the array, and in support of such challenge, showed to the Court, that, on a previous day of the same term, the regular jury summoned in obedience to the statute was discharged, a new venire issued by order of the Court, and by virtue of which process the then jury was empanneled. Such challenge to the array was overruled by the Court.
    In Bank.
    Dec. Term, 1846.
    Evidence was then given, by the attorney for the State, tending to prove the passing of the bank note described in the indictment by the plaintiff in error. One Dobbin was then called as a witness, who testified that, on the same day with the passing of the bill to Whittaker, another note was passed to him by one Wood, in the presence of the plaintiff in error, and for their joint benefit; that said note was, on the day after the passing thereof, left by the witness with a magistrate at Detroit, in the State of Michigan, to be used in a prosecution against said Wood in that State; and that said Wood was convicted in September, 1845, and the bill remained in the hands of the proper authorities at Detroit.
    The witness was then asked by the counsel for the prosecution, by what bank said note purported to be issued, and whether or not said note was counterfeit. To this question the witness answered, giving a description of the bill, and his belief that the same was counterfeit. To the admission of this evidence, and the question proposed, the counsel for the plaintiff in error objected; but the objection was overruled, and exception taken.
    The attorney for the State then called a witness to prove that there was, by general reputation, such a bank as the Yates County Bank, located at Penn-Yan, in the State of New York. This was likewise objected to; but the Court permitted this evidence to go to the jury, and the counsel for the plaintiff in error excepted to this opinion.
    The counsel for the plaintiff in error then insisted that reputation alone was not sufficient evidence of the existence of the bank, without other proof, but the Court held otherwise; and this opinion of the Court was also excepted to.
    
      On this record, the errors assigned are —
    First: The ruling of the Court that the jury was properly empanneled.
    Second : That the Court permitted improper evidence to go to the jury.
    Third: That the Court erred in permitting evidence to be given to the jury, of the counterfeit. character and contents of the note proved to be in the State of Michigan.
    Fourth: That the Court erred in permitting evidence to go to the jury, of the general reputation of the existence of the Yates County Bank; and, upon these assignments, prays this Court to reverse the proceedings of the Common Pleas.
    
      Young and Waite, for Plaintiff in Error.
    First: We claim that the Court erred in permitting evidence to be given of the contents of the absent note, and of its counterfeit character.
    We do not claim but that evidence may, under certain circumstances, be given to the jury, of the possession by the prisoner of other notes of a similar description with that in the indictment; but to warrant such proof, the bills must themselves be produced, or their absence accounted for, as in other cases where secondary evidence is admissible. 2 Phil. Ev'., Cowen and Hill’s Notes, 464.
    The fact that the note in this case is in another State, does not change the general principle, certainly not without proving that some efforts have been made to obtain it, 3 Dess. Eq. Rep. 290, and the cases there cited, viz: Amber, 249; 3 Term Rep. 160; 1 Ves. sen. 234; Ibid. 387 and 503; 2 Ves. sen. 38.
    We see nothing in this case which should take it out of the general rule. Indeed, the reasons why the primary evidence should have been produced are peculiar. It was not simply the contents of the paper which were to be proven, but the additional fact of its counterfeit character. This was matter of opinion alone, which could only be proved from an inspection of the paper itself. But one witness was permitted to form that opinion. No opportunity was allowed to rebut his testimony. Surely, then, this is not a case in which to relax the rule.
    Second: The evidence of the existence of the Yates County Bank, by general reputation, was improperly admitted and was wholly insufficient for the purpose for which it was introduced.
    It was going much further than the case of Sasser v. The State of Ohio, 13 Ohio Rep. 453. That case only decided, that the existence of a foreign bank might be proved by those who knew it had an existence, from dealing with it or otherwise. But in the case at bar, the testimony was hearsay testimony in its simplest form, unattended with any of those circumstances which make it receivable in evidence in a court of justice.
    
      Henry Stanbery, (Attorney General,) for the State.
    First: The first error relied upon is, in the admission of evidence as to the note testified to by Dobbins. This witness stated, that on the same day of the passage of the note upon which the indictment was founded, another note was passed by one Wood, in the presence of the defendant and for their joint benefit, which note was also counterfeit. This other note was not produced at the trial, but it appeared that it had been made the foundation of a prosecution against Wood in the State of Michigan, and was filed in that case — which case had resulted in Wood’s conviction.
    There is no question, that the passage of other counterfeit paper, about the time of the passing of the paper on which the indictment is founded, is proper to establish the scienter. The objection made is only for its non-production.
    I doubt very much if, in any case, it is necessary to produce the note in order to let in such proof, for, it seems to me, the rule as to primary and secondary evidence does not apply. The point of inquiry is not as to the very contents of the note, but, simply, whether it is counterfeit or genuine. The witness is called on to testify as to a matter of skill and judgment rather than of memory alone. It .is of little consequence what the contents of the note may be, for the material matter is, that it is counterfeit. The best, or at least the legal evidence on that point, is the opinion of a witness who has seen the note, and, therefore, had the opportunity of forming an opinion. Nor does it appear to be at all necessary that the note should be before the witness or offered to the jury at thé time of the trial. This is necessary when the contents are the matters to be proved, for they speak for themselves, and appear upon inspection ; but it is quite otherwise upon the question of genuine or counterfeit, for that is a matter of skill to be made out by the opinion of experts.
    I do not find that this question has ever been decided by this Court. In May v. The State of Ohio, 14 Ohio Rep. 467, the question was raised, but not decided. The decisions of other courts have not been uniform.
    But if, ordinarily, it is necessary to produce the note, I claim that a sufficient ground was laid for secondary evidence:
    1. Because it appeared that the note was out of the State. Boone v. Dykes, 3 Monroe, 532; Bailey v. Johnson, 9 Cowen, 115.
    2. Because it was in the custody of the law, in Michigan, and could not be withdrawn. This note was the essential thing upon which the conviction of Woods, by the court in Michigan, was based. It is very certain no one was authorized to withdraw it from the files, and that the court would not have allowed it to be withdrawn. It comes within the rule laid down in Roscoe’s Crim. Ev. 8, as a paper in deposit in a foreign country, and not legally removable from its place of deposit.
    Second: It is next claimed, that the Court erred in allowing proof by general reputation, of the existence of the Yates County Bank.
    I consider this question settled by the case of Sasser v. The State of Ohio, 13 Ohio Rep. 453.
   Wood, C. J.

The first assignment for error has been left untouched by the arguments of counsel; for the reason, doubtless, that it was not supposed that it could be pursued with success. They are by no means mistaken in their opinion. If such were not our conviction, we should, however, without hesitation, reverse these proceedings. For, while in civil cases we are not astute, in searching for errors not expressly raised on the record, but consider our duty as discharged when we dispose of the case made by those who represent1 the parties in interest, in criminal prosecutions a different rule prevails. The Court, then, in the administration of criminal justice, are, at least, quasi counsel for the accused; and, in revising the proceedings of an inferior tribunal, will overlook no substantial defect in the record, though not expressly assigned, any more than permit on trial an improper conviction to be obtained by false issues presented through the forms of pleading, and by the unskillfulness of counsel. Though not relied upon by counsel, it furnishes no reason why the assignment under consideration should not receive a passing remark from us.

This question has before been raised upon the circuit, and for its correct solution we must refer to the statute, and, if the forms and spirit of the law have been pursued, it is believed to afford sufficient protection to secure the innocent from convic tion when accused, and this Court should be careful to devise no new modes of escape for the guilty, which will cheat the State of its victim and baffle the efforts at justice.

The statute provides for a challenge to the array when the jury is not summoned in obedience to its provisions; Swan’s Stat. 493; but the same act provides, that when by absence, sickness,1 challenge, or otherwise, there are none remaining of the regular pannel, the Court of Common Pleas may order the sheriff to return a jury of bystanders. This is precisely what was done in the case at bar. The pannel first summoned were not absent from sickness or challenge, it is true, but they were otherwise absent, having been duly discharged by the Court at a previous day in the term, doubtless because the accused or the State was not ready to proceed with the trial, and another pannel selected from the bystanders. It is oftentimes convenient, and a saving of expense, that this authority should exist in the Court, and we think it is expressly conferred. It has been so held on the circuit.

The second assignment is, the admission of improper evidence to the jury, in general terms; but, as the third and fourth define particularly in what the objections consist, and ■embrace all the opinions of the Court covered by the exceptions which remain, when they are disposed of, the case is at an end. And first, as to the testimony of Dobbins: This witness was called to prove the scienter, or guilty knowledge of the accused. The note was, it is true, not passed by him, directly, in Detroit, but by Wood, in his presence, and for the joint benefit of both; and this fact tended to show that they were jointly engaged in a criminal enterprise. This note was counterfeit. It purported to have been issued by the same bank as the note described in the record on which the indictment in the case at bar was predicated, and it is no longer an open question whether the uttering and publishing of other counterfeit paper, about the same time, is competent evidence, as tending to prove a knowledge of the base character of that, for the passing of which, the accused is on trial. The authorities are numerous in favor of the legality of such testimony.

It is said, however, the note must be produced' on the trial, if in existence. There would be force in the argument, in other cases; in this, it has been answered by the Attorney General, that it is not the contents of the note, but its counterfeit character, that is the subject of inquiry, and, that, to let in such proof, the rules, as to primary and secondary evidence, do not apply. But if the note was in court, or, without great inconvenience and delay, could be produced, in our opinion, it should not be dispensed with. It would then afford to the accused the opportunity to contradict the proof, as to the character of the note — and it should be produced on the trial if within the jurisdiction of the court and the reach of the prosecution. In the case at bar, such was not the fact. The note was in a foreign jurisdiction, if not destroyed, and there is no authority known to the law, by which its possession could have been obtained, and the evidence was, therefore, properly admitted. In 14 Ohio Rep. 467, the same question was raised, but the case was disposed of on other grounds.

The remaining assignment is, that the existence of the bank from which the notes purported to have been issued, was permitted to be proved by general reputation.

It has been decided by this Court, in 13 Ohio Rep. 453, that it is not necessary,to produce the charter of a foreign bank to prove its existence, in a prosecution against one for having in his possession forged and counterfeited bank notes; and this case, by analogy, may be considered as settled by that.

The existence of such corporation may be proved by one who, of his own knowledge, is acquainted with the fact, or by one who has seen or handled its notes, currently passing in the community as the notes of such an institution, or by general reputation; and there is, certainly, no subject on which general reputation is less likely to err, for any considerable period. But the rule springs from necessity, and the absolute impossibility of conviction, in frequent cases, without its adoption. Indeed, if it be not so, the counterfeiters of bills of distant banks may hold a general jubilee and set the laws at defiance.

Another point might have been made on the trial, which would have presented more difficulty — whether it was competent to the prosecution to prove the conviction of Wood in Michigan, by parol ? But no exception is taken to the admission of such proof.

The judgment and proceedings of the Court of Common Pleas, are affirmed.  