
    George Griffin v. The State of Ohio.
    1. An indictment under the 29th section of the crimes act, for selling and disposing of counterfeit hank notes, should sot forth truly and precisely all th parts of the alleged counterfeit notes which constitute the terms of their contract. But it is not necessary to the validity of the indictment, to set out the numbers, vignettes, mottoes, and devices, or the words and figures in the margin, which constitute no part of the contract of the instrument.
    2. But if the indictment contain allegations, descriptive of the identity of the bills charged to have been sold, such allegations, though unnecessary, can not be rejected as surplusage.
    3. Therefore, where the indictment describes the bills sold as numbered 175, and the proof relates only to bills numbered 1750, and 1758, the variance will be fatal.
    4. Proof tending to connect another party with the defendant as a pariiceps criminis, will not justify the introduction in evidonce of counterfeit bills found upon such other party fifty days after.the sale charged, though such bills be of the same manufacture with those proved to have been sold by the defendant ; there being no evidence of any intercourse or association between the defendant and such other party during the intervening time.
    3. Upon the trial of a criminal cause, a defendant may give evidence of his general good character; and such evidence may thereupon be rebutted or disproved by the prosecution; but it is not competent to rebut such evidence of good character by proof of a bad local reputation, limited to a community or neighborhood remote from the defendant’s residence, where he has never lived, and where he is not shown to be generally known or acquainted; nor by proof of reports relating to particular facts.
    Error to the court of common pleas of Trumbull county.
    Tbe plaintiff in error was tried and convicted in the court below, upon an indictment, under the 29th section of the crimes act, charging him with having unlawfully sold, bartered and disposed of two counterfeit bank notes, of the denomination of ' dollars, and purporting to be notes of the Merchant’s Hank of St. Louis.
    The indictment specifically describes but one of the notes alleged to have been sold and disposed of, and professes to set it out according to its “ tenor and effect.” What purports to be a copy of the note is set out in the indictment, and exhibits in two several places on the face of the note, the letters and figures “No. 175.”
    Upon the trial two bank notes were produced by the prosecutor, corresponding in other respects with the note described in the indictment, but one numbered 1750, and the other numbered 1758; and after proof of their counterfeit character, and that they had been purchased from the defendant, on the day mentioned in the indictment, under circumstances tending to show that they were sold by the defendant to the witness as counterfeit notes, the defendant knowing them to be such, said notes were offered in evidence; to which the defendant by his counsel objécted, but the court overruled the objection, and admitted said notes in evidence; to which the defendant by his counsel excepted.
    The evidence offered by the state tended.to prove that the alleged sale of the bills in question was made by the defendant on the 1st day of January, 1861, and that the defendant was on that day, shortly before said sale, in company with one Matthew Robb, and the evidence tended to prove, circumstantially, that said bills had been obtained by the defendant from said Robb, with a view to such sale. In the further progress of the trial “ the state proved that said defendant had been for a considerable time acquainted with said Robb, that they lived in the same township and neighborhood; that said defendant had, some year or more since, boarded in the family of said Robb for some time; that he had been frequently with said Robb, prior to January 1, 1861, but not since, and had been abroad with said Robb to Pensylvannia, about December 1, 1860; that on the night of the 19th of February, 1861, defendant was arrested on warrant for the charge in this cause at a hotel in Vienna; that on the same night said Robb was arrested at his own house in Vienna about one and a half miles from said hotel, and not in presence of defendant, on charge of other acts of dealing criminally in counterfeit bills. One of the officers who made the arrest, being on the stand, was asked if he searched Robb at the time of the arrest; to which he replied that he did. The counsel for the state then asked him to state what he found; to which defendant by counsel excepted. The counsel for the state then stated that he expected to prove that at that time there was found in Robb’s possession counterfeit money similar in character to the bills already given in evidence. The court thereupon overruled the objection, and allowed the evidence to be given; to which defendant excepted. The witness then produced a quantity of bank bills, and said he found those on said Robb, at the time, in a pocket book. Two purported to be ffve dollar bills of the said Merchant’s Rank of St. Louis, and were apparently made upon the same plate as the two bills first aforesaid; and three purported to be tens of the same bank, made on a plate the same as the fives, except the amount of the bill. There were several bills of other banks, and three engravings for bills not filled up. These several bills were exhibited to the jury; after which the counsel for the state offered to prove that all said bills were not genuine. The defendant then, by counsel, objected to such proof as to the bills not on the Merchant’s Bank of St. Louis ; and the counsel for the state withdrew his question as to all said bills except those purporting to be on the Merchant’s Bank: and the court admitted said testimony. And the state then gave testimony tending to show that said bills found on Robb, purporting to be on the said Merchant’s Bank of St. Louis were false, forged and counterfeited. To all which defendant’s counsel excepted.”
    “ The state having rested, the defendant called a number of witnesses to prove the good character of defendant, previous to this charge, and gave evidence tending to establish such good character for honesty. Some of said witnesses testifying to good character lived in Vienna where defendant resided, and' had for several years resided, and some lived in Warren, eight miles west of Vienna.
    “ Defendant having closed his evidence in chief, the state called several witnesses residing in Garrettsville where defendant never resided, some eighteen miles west of Warren, and twenty-six miles west of defendant’s residence, and having placed one of.them on the stand, inquired of him, if he had seen the defendant in Garrettsville, and said witness having stated that he had, counsel for the state asked the witness if he knew whether the defendant acquired a general reputation there, on the subject of counterfeiting, and if he did, .whether he had the means of knowing what that reputation was? To which defendant objected; but the court overruled the objection, and the witness answered that such reputation was acquired there, and he had the means of knowing that reputation. And on inquiring what it was (to which defendant objected, and the court overruled the objection), said witness said his character was bad, that report said he had been concerned in passing counterfeit money, and that it was said Gillette Griffin, who lived near Garrettsville, had been the-innocent instrument, and defendant had caused him to pass it. The defendant objected to all this testimony to rebut good home character, claiming that it had reference to only one single act, and the general reputation arising out of that, and was not general reputation where defendant was well known, where he resided, and did business. The other witnesses from Garrettsville, gave like general reputation at Garrettsville, all which, was objected to, and the objection overruled, to which defendant excepted.”
    The jury having found the defendant guilty, he was sentenced accordingly, and he now seeks to reverse the judgment, on account of the admission of the evidence objected to on the trial.
    
      0. W. Smith, for plaintiff in error:
    1. The court below erred in allowing the bank notes, Nos. 1750, and 1758, or either of them, to be given in evidence, when-the bank note set out in the indictment was No. 175. Although it may not have been necessary to give the number of the bill in the indictment, yet it being set out as descriptive of the bill' and to indentify it, it must be proven as described. 3 Stark. Ev. 1530; State v. Noble, 15 Maine, 476.
    2. The court below erred in permitting the evidence as to-searching Robb, and the counterfeit money found on him, to go to the jury. Before the acts and sayings of a third person and! evidences of guilt found on such person can be introduced as evidence against an accused party, it must first be shown that they were engaged in a common unlawful design or act, and' then the acts, sayings, etc., must be such only as were at or near the time the crime is alleged to have been committed.
    3. The court below erred in permitting the testimony of witnesses from Garrettsville as to the defendant’s character, to go to the jury. Evidence of character should have been only what people best acquainted with him say of him in the neighborhood where he lived, and not what people twenty-five miles-•from Ms residence may have said of him; and that, simply what they heard or suspected in regard to some particular circumstance. That would be special, and not general character. French v. Millard, 2 Ohio St. Rep. 44.
    
    
      L. JR. Critchfield, attorney general, for the state:
    1. Every fact or circumstance laid in an indictment, which •■is not a necessary ingredient of the crime, may be rejected as surplusage, and need not be proved at the trial. So, if there be any defect in the manner of stating such matter, the defect will not vitiate the indictment. Wharton’s 0. L„ see. 292; The State v. Wilder, 7 Blackf. 582; 5 Ohio Rep. 5, 8; 10 Ohio Rep. 220.
    It is sufficient to set out what constitutes the contract of the bill. The number of the bill, and the words and figures at ■the top or in the margin were immaterial, because the contract was complete without them. If all that was evidence of the •contract, was precisely set out, it was sufficient. 1 Mass. 62, 203; 9 Ohio St. Rep. 354. The authorities cited for plaintiff in error, on this point, are, substantially, to the same effect.
    2. Robb and the plaintiff in error were in possession and engaged in disposing of counterfeit money. Sometimes separate, sometimes together, their association in the business was continuous. Counterfeit money of the same manufacture as that •disposed of’ by one accomplice was found upon the other. 'There was a connection between the circumstance and the the fact to be inferred; and the circumstance tended to the •conclusion which was intended to be deduced by the aid of reason and experience. 5 Ohio Rep. 10; Roscoe’s C. Ev. 94.
    3. The evidence introduced as to character comes within the rule in 2 Ohio St. Rep. 44.
   Scott, J.

The assignment of errors in this case relates, ■mainly to the admission of improper evidence, upon the trial in the court below. It is claimed that the court erred:

1. In admitting in evidence the counterfeit bills, numbered respectively 1750 and 1758, while the only bill specially .set out in the indictment, is described therein as being bered “175.” num-

2. In admitting evidence of the searching of Robb, and of the counterfeit money found in his possession. And,

3. In admitting the rebutting testimony of the witnesses-from G-arrettsville, in relation to defendant’s character at that place.

We shall briefly consider each of these points.

1 It is well settled, that in an indictment for forgery, or where,as in this case, the forged or counterfeit character of an instrument is an essential ingredient in the crime charged, the-instrument alleged to be forged, must be specifically described. McMillen v. The State, 5 Ohio Rep. 269; Dana v. The State, 2 Ohio St. Rep. 91; Wharton’s Am. Crim. Law, 587; 3 Chit. Crim. Law, 1040. Accordingly, the indictment in this case,, alleges that one of the counterfeit bank notes unlawfully sold by the defendant “was of the tenor and effect following, to-wit.” The word “tenor” imports an exact copy. It was-necessary therefore that the indictment should set forth truly and precisely all the words and figures of the bill which constitute its contract. It was not necessary to the validity of the indictment to go further and set out the number of the bill, its vignettes, mottoes, and devices, or the words and. figures in its margin which constitute no part of the contract of the forged instrument. These are not properly any part' of the bill. Commonwealth v. Bailey, 1 Mass. 62 ; Commonwealth v. Stevens, Id. 204 ; People v. Franklin, 3 Johns. Cas. 298; Commonwealth v. Searle, 2 Binney, 332; State v. Carr, 5 N. Hamp. 367; Wharton’s Am. Crim. Law, 588,174.

But it does not follow that descriptive averments unnecessarily inserted in an indictment may be rejected as surplusage. On the contrary, no allegation descriptive of the identity of that which is legally essential to the charge can ever be rejected. Thus, “ if a man be charged with stealing a black horse, the allegation of color, although unnecessary, yet being descriptive-of that which is material, could not be rejected; to admit evidence that he stole a white one, would not be to prove a part' of that alleged, but to prove an offense in respect of a subject matter proved to be different.” 3 Stark. Ev. 1531; Arch-bold’s Or. PI. 108; 2 Russell on Crimes, 788; Moore v. The State, 12 Ohio St. Rep. 887. The indictment in this case, in its specific description of one of the bills alleged to have been sold by the defendant, represents it as numbered “ 175 ” in two places upon its face. It is not easy to see how this can be held to be other than an averment descriptive of identity. Two bank bills may be substantially similar, but if they are •differently numbered, they are thus distinguishable from each other, and a charge of selling the one, is not supported by proof of a sale of the other. In the case of the State v. Noble, 15 Maine Rep. 476, the defendant was indicted for the fraudulent taking and conversion of a pine log marked in a manner particularly described; the proof upon the trial had reference to a pine log marked in a different manner, and it was held that no conviction could be had, though the special description of the log was unnecessary.

In the case before us, the descriptive number “175” stated in the indictment is entirely different from the numbers 1750 and 1758 upon the bills admitted in evidence. Though the figures stated in the indictment are all to be found in the numbers upon the bills offered in evidence, yet they are found in connection with another figure, by which the numerical value of each of these is wholly changed. ' This variance, in matter of description, should, we think, have excluded the bills offered in evidence.

2. We perceive no satisfactory ground upon which the competency of the evidence, relating to the searching of Robb, and the counterfeit bills found upon him, can be placed. Had the bills been found upon the defendant himself when arrested, •evidence of that fact would have been competent only for the purpose of proving his guilty knowledge of the counterfeit character of the bills which he had sold. But they were found upon another, fifty days after the alleged commission of the ■ crime with which the defendant stood charged; and during all that time, no intercourse or association is shown to have taken place between the defendant and Robb. After such a lapse of time, the defendant could not properly be held responsible for the acts of Robb, even though they may have been partieeps criminis in the transactions which had taken place fifty days before that time.

3. Upon the trial of a criminal cause the prosecution can •not offer evidence to impeach the general character of the defendant, till he has put it in issue by calling witnesses to prove his good general character. Com. v. Hardy, 2 Mass. R. 317. The question at issue in such a case is the general character of the party. This general character is the reputation Avhich he bears, or the estimation in which he is held in the community where he has lived. And though it may be co-extensive with his acquaintance, yet it can not, in any case, consist of a local reputatiou confined to a neighborhood remote from the party’s residence, and among a community not having the means of forming, from personal acquaintance, an intelligent judgment on the subject. The general character which is the proper subject of inquiry should also have reference to the nature of the charge against the defendant! Thus, in the present case, the defendant being charged with a crime necessarily importing dishonesty, called witnesses who gave evidence tending to show a general good character for honesty. To rebut this evidence, the state was permitted, after proving that the defendant had been seen in Garrettsville, twenty-six miles distant from his residence, to show that the defendant had a bad reputation, at that place, on the subject of counterfeiting, that report said he had been concerned in passing counterfeit money, and that it was said his brother, who lived near that place, had been the innocent instrument, and defendant had caused him to pass it. This evidence was clearly incompetent; it did not tend to show the general character of the defendant among his neighbors and acquaintances, but to prove a report limited to a community, Avhere the defendant had never lived, and was not shown to be generally acquainted. It was also objectionable as a mere report in relation to particular facts, and not to general character.

For these several errors the judgment of the court of common pleas will be reversed.

Peck, 0 J., and Gholson, Brinkerhoee, and Ranney, JJ., concurred.  