
    *Cady v. The Commonwealth.
    January Term, 1854,
    Richmond.
    I Criminal Law-Uttering; Forged Note — Parol Proof of Existence of Bank — Surplusage,—On a prosecution for uttering- and attempting to employ as true a forged note purporting to be the note of the Bank of Delaware in Pennsylvania, a banking company authorized by the laws of Pennsylvania, the existence of such a bank may be proved by parol evidence. The averment that it was authorized by the laws of Pennsylvania is surplusage, and need not be proved.
    3. Same — Indictment—Date Stated in Figures — Effect.— The time when the offence is alleged in the indictment to have been committed, being stated in figures, is no error.
    Daniel Cady was indicted in the Circuit court of Ohio county, for that he on the 16th day of September 1853, at the county aforesaid, feloniously did utter and attempt to employ as true, to Caroline Seabright, a certain false and forged bank note, purporting to be a true and genuine bank note, for the payment of ten dollars, of the Bank of Delaware county, Chester, Pennsylvania, the same being a banking company authorized by the laws of Pennsylvania, with intent to defraud the said Caroline Sea-bright; he, the said Daniel Cady, then and there knowing the said false and forged note to be false and forged, against the peace, &c.
    On the trial the prisoner filed a bill of exceptions to an opinion of the court, in which it is stated, that the commonwealth offered no evidence to prove that there was such a bank in the state of Pennsylvania as the Bank of Delaware county, except the evidence of witnesses who proved that there was such a bank in Pennsylvania, and they had seen and well knew the genuine notes of it. To the sufficiency of which evidence to prove this fact, and that it .was established by the laws of Pennsylvania, the prisoner objected, 'and also insisted that it was incumbent on the commonwealth in this case, before he could be convicted of the offence charged in the indictment, to produce the law of the state of Pennsylvania, or a copy thereof, authorizing or creating the Bank of Delaware county. But the court overruled said objections ; and also ruled that it was not necessary for the commonwealth, in order to convict the prisoner of the offence wherewith he stands charged by the said indict- • ment, to offer in evidence, or produce on the trial any law of Pennsylvania, or copy thereof, authorizing or creating the Bank of Delaware count}-.
    The jury found the prisoner guilty, and fixed the term of his imprisonment in the penitentiary at two years. And thereupon he moved in arrest of judgment: 1st. Because he says that the indictment does not charge him with uttering or attempting to employ as true any false and forged note or bill of a banking company; but with uttering and attempting to employ as true a false and forged bank note on the Bank of Delaware county, not charging it to be a banking company; and because the said indictment does not charge him with uttering or attempting to employ as true a false and forged note of a banking companju 2d. Because the time when the said supposed offence was committed, is laid in the indictment in figures and not in words.
    The court overruled the objections, and sentenced the prisoner in accordance with the verdict of the jury. Whereupon he applied to this court for a writ of error, which was awarded.
    Jacob, for the prisoner.
    The Attorney General, for the commonwealth.
    
      
      See monographic note on “Indictments, Informa-tions and Presentments.” appended to Boyle v. Com., 14 Gratt. 674; also, foot-note to Lazier v. Com., 10 Gratt. 708.
    
   SAMUELS, J.

This - cause is brought here by writ of error to a judgment of the Circuit court of Ohio *county, whereby the plaintiff was condemned to imprisonment in the penitentiary.

The indictment was for the felonious offence of knowingly' uttering and attempting to employ as true a false and forged bank note for the payment of ten dollars, of the Bank of Delaware county at Chester, Pennsylvania, the same being a banking company authorized by the laws of the state of Pennsylvania, with intent to defraud, &c.

The prosecution is under § 3, ch. 193, p. 732, 3 of the Code of 1849. This section so far as it regards bank notes, is enacted against two classes of offences:

1st. The forgery of a note of a banking company, or knowingly uttering and attempting to employ as true, a forged note of a banking company which does exist.

2d. The forgery of a note, or knowingly uttering or attempting to employ as true, a forged note purporting to be the note of a banking company when such company does not exist.

The prosecution in this case was had as against an offence of the first of these classes. A question was made in the Circuit court, and in this court, whether the commonwealth was not required to prove the existence of the banking company by producing the written law of Pennsylvania giving it existence: The Circuit court decided that parol evidence was admissible, and that written evidence was not necessary.

The statute obviously contemplates the notes of any banking company having existence; but it is in nowise of the essence of the offence that the banking company should have been organized in any particular mode: It is immaterial whether it existed by written charter or not. The allegation that the bank was authorized by law in Pennsylvania is therefore mere surplusage, and need not be proven. The Circuit court correctly decided that parol proof was ^admissible to prove the existence of the banking company.

The plaintiff further alleges that the Circuit court erred in overruling his motion in arrest of judgment. It is said the motion should have been sustained because the indictment does not follow the language of the statute creating the offence. This is a mistake of fact. The indictment substantially sets forth all the facts constituting the offence, the felonious intent, the forged character of the note, the existence of the company, the knowledge of the plaintiff that it was forged, the uttering and attempting to employ it as true, and the intent to defraud are all alleged; and nothing more is required to complete the offence.

It is further alleged that the judgment should have been arrested because the time when the offence is alleged to have been committad is expressed in figures and not in words. This objection was made before this court at its July term 18S3, in the case of Lazier v. The Commonwealth, supra 708, and it was there decided that it was not material that dates should be given in words, but that they might be expressed in figures.

I am of opinion the judgment should be affirmed.

The other judges concurred in the opinion of Samuels, J.

Judgment affirmed.  