
    McGregor v. The State.
    Indictment, charging that one A., on, &c., at, &c.,“ eight pieces of Éflsejjfb: and counterfeit coins, each piece thereof resembling, or intended p resemble, ‘ and pass for, a genuine piece of the American gold coin, whicb^ WÍjsli'tlpn) , and there current in the said State of Indiana, called a dollil^ unlawfully, falsely, and deceitfully did then and there utter, publish, ah&Sput.^ off as true and genuine, to one B.; he, the said A., then and there well knowing the same to be false, forged an'd counterfeit, with intent then and there to defraud the said B., contrary to law.”
    
      Held, that the indictment was sufficient, under the statute.
    
      Held, also, that the allegation that tlie coins passed resembled, or were intended to resemble genuine coin, was surplusage ; and hence, though in the alternative, could not vitiate the indictment.
    
      Held, also, that though the uttering of counterfeit coin, where it is not taken, would, of itself, constitute an offense, yet where it is taken, the uttering and putting off constitute but a single crime.
    
      
      Friday, January 24.
    Felonies belonging to the same class, and growing out of the same transaction, may sometimes be joined in different counts of the same indictment, and without the prosecutor being put to his election.
    Such joinder is matter of practice for the discretion of the Court, to be exercised under an enlightened sense of justice and humanity.
    Where coins of the same kind were passed by another person on the prosecuting witness at the same time, and he is unable to identify those received from the defendant, he may produce all the coins to the jury and testify that a certain number of them were received from the defendant.
    The record in this case does not show that there was any error in permitting the State to prove, in order to show guilty knowledge, that the defendant had other counterfeit gold dollars in his possession, without producing them or showing notice to the defendant to produce them.
    Circumstantial evidence, to warrant the jury, in a criminal cause, in the belief of a fact, must be of a character to produce so firm a belief in the’ mind of a discreet man of the existence of the fact, that he would act upon it in the most important concerns.
    APPEAL from the Hamilton Circuit Court.
   Perkins, J.

Indictment for forgery, containing two counts, one for making, the other for uttering, false coin. Conviction, and sentence to the State prison. The case has been argued with a thoroughness corresponding to its importance. A motion was made to quash' the count for uttering, because it was in the alternative, but the motion was overruled.

The count charged the defendant with uttering, &c., counterfeit gold coin, at the time current in the State, knowing the same to be counterfeit, with intent to defraud, &c. This was sufficient under the statute. 2 E. S., § 32, p. 116. The pleader, however, further averred, that said counterfeit coin resembled, or was intended to resemble, genuine coin. On this allegation was based the objection, that the indictment was in the alternative. But the whole allegation was surplusage, and informality in it did not vitiate the indictment. The question of resemblance would come up on the evidence.

It was also claimed that the count was bad for duplicity, in charging two or three offenses. The count alleges that the defendant uttered, published, and put off the counterfeit coin; and it is argued that uttering is one offense, and passing the coin another. Admit that uttering might, of itself, constitute an offense where the counterfeit coin was not taken by the person to whom it was tendered, hence not put off; still, where the coin was taken, hence put off, upon the tender, the entire transaction would constitute but one offense. Every putting off of counterfeit money must include an uttering and tendering, but there may be an uttering and tendering where there is not a putting off. Less than is charged to have been done in this case might constitute a crime; while all that is charged to have been done, being a single act, makes but a single crime. This clearly distinguishes this case from the case of The Slate ads. Miller, 5 How. (Miss.) R. 250, where a selling of liquor, and a suffering to be drunk, &c., were charged.

A motion was made to quash the.whole indictment, because separate felonies were charged in the separate counts of the indictment. See Hayworth v. The State, 14 Ind. 590. In that case, it is probable that it might have been more conformable to correct practice, had there been two counts. See Wharton’s Free, of Indictments, 2 Ed., p. 2; R. V. Trueman, 87 C. & P. 727. The general proposition, that separate felonies should not be charged in one indictment, has been asserted in two or throe cases without the proper qualification. State v. Smith, 8 Blackf. 489, and Engleman v. The State, 2 Ind. 91. If they do not belong to different classes, as murder and forgery, growing out of separate transactions, they may sometimes be joined, without subjecting the indictment to be quashed, or the prosecutor to be put to an election.

“ In cases of felony, no more than one distinct offense, or criminal transaction, at one time, should regularly be charged upon the prisoner in one indictment; because, if that should be shown to the Court before plea, they will quash the indictment, lest it should confound the prisoner in his defense, or prejudice him in his challenge to the jury; for he might object to a juryman trying one of the charges, though he might have no reason so to do as to the other: and if they do not discover it till afterward, they may compel the prosecutor to elect on which charge he will proceed. But this is only matter of prudence and discretion which it rests with the judges to exercise, for, in point of law, there is no objection to the insertion of several distinct felonies of the same degree, though committed at different times, in the same indictment, against the same offender; and it is no ground either of demurrer or arrest of judgment.” Chit. Cr. Law, vol. 1, p. 253; see, also, Wharton’s Prec. of Indictments, 2 p. 2; 1 Archb. Cr. Law, 95, note. In Cash v. The State, 10 Humph. (Tenn.) 111, the Court says: “Put it may sometimes bo proper to unite in the same indictment different offenses, when they are of the same character, differing only in degree, as in the case of The People v. Rynders, 12 Wend. (N. Y.) 425, where it was held that a charge for forging a check, and also for publishing it as true, knowing it to be false, were properly united.” Again: “ It is matter of practice to be left to the discretion of the Court,.to be exercised under the influence of an enlightened sense of justice and humanity.” In the case at bar, the Court did not abuse discretion in refusing to quash. Had the felonies joined been perjury and larceny, the case might have been different.

At the time Me Gregor passed to the prosecuting witness' two one dollar gold pieces, one Lane passed to him eight such pieces. The whole ten were counterfeit, and alike; but the witness could not specify which two of the ten Me Gregor passed to him, but he produced them alb before the jury, and testified that Mo Gregor passed to him two of those ten. We think there was no error in this.

.• The Court, as tending to show guilty knowledge, permitted evidence to go to the jury, that the defendant had in possession other gold dollars than those on which the prosecution was based, and that they were counterfeit, without such dollars having been produced, and without notice having been given to the defendant to produce them. We think the record does not show that there was error in this. Stalker v. The State, 9 Conn. 341. We doubt if they were to be regarded as written instruments, of which contents were to be proved. Kirk's Case, 9 Leigh, 627; see Armitage v. The State, 13 Ind. 441.

Objection is taken to instructions given and refused, but we think, when viewed in connection with the evidence which is in the record, the instructions given fairly covered the case, and that there was, consequently, no error in refusing those not given. It was clearly proved by direct testimony that the defendant uttered two one dollar gold pieces, as genuine coin, to the person named in the indictment, and received a consideration for them, said person taking them as genuine. It was proved by direct evidence that he had uttered like gold pieces, as gemiine' to other persons. It was proved by direct evidence that he had still other like pieces in possession. It was positively proved by the testimony of experts that all of said pieces of coin were counterfeit.

Now, the only fact to be deduced by inference, was the guilty knowledge, as the law would, there being nothing to rebut it, raise the intent to defraud upon the fact of knowingly passing, to an innocent person for a consideration, counterfeit money. The Court told the jury that the passing of the specified pieces must be proved; that it must be proved that they were passed to the person named in the indictment; that it must be pi-oved that the defendant knew, at the time he passed them, that they were counterfeit, and that he intended to defraud, &c. The Court told the jury that each of these facts must be proved beyond a reasonable doubt; that they might be proved by positive or circumstantial evidence, or both; but that where the'State had to rely on circumstantial evidence for a .conviction, every circumstance necessary to constitute the chain relied upon must be established beyond a reasonable doubt. The Court also told the jury, substantially, that circumstances, to warrant belief of a fact, must be of so conclusive a character as to produce so firm a belief in the mind of a discreet man' of the existence of the fact, that he would act upon it as existing in the most important concerns. The jury would understand these instructions as applying, in determining the fact of guilty knowledge. Taking the instructions altogether, and viewing them as applied to the evidence, we think they placed the case fairly before the jury. There is no objection to the instructions upon the direct evidence.

Wills, in his Circumstantial Evidence, p. 236, quotes with approbation the following instruction given by Lord Chief Baron Pollock: “If the conclusion to which you are conducted be that there is that degree of certainty in the case that you would act upon it in your own grave and important concerns, that is the degree of certainty which the law requires, and which will justify you in returning a verdict of guilty.” See Ind. Dig. p. 361. This, then, is a test of certainty beyond a reasonable doubt.

W. B. Pierse and Ilervey Craven, for the appellant.

J. E. McDonald, Attorney Geni, and A. L. Boache, for the State.

Per Curiam.

The judgment is affirmed, with costs.  