
    Damewood v. The State.
    The statute of this state makes obligations, bonds, bills obligatoiy, or bills of ■ exchange, promissory notes for the payment of money, or notes for the payment of any specific property, lottery tickets, and bills of credit) subjects of robbery and larceny.
    It is not sufficient that the indictment describes a bank note, as a promissory note for th§ payment of money, it should be charged as a promissory note for the payment of money, purporting to be a bank note.
    The omission of the word “ steal,” will not vitiate an indictment, if the felonious taking and carrying away is sufficiently charged.
    IN error from the Hinds circuit court.
    This was an indictment against Damewood, for larceny of a pocket book and certain bank notes on the Planters Bank, the property of J. Caldwell. The facts are sufficiently explained by the assignment of errors, and the opinion of the court.
    The counsel for plaintiff in error made the following assignment of errors in the pleadings.
    1. That the first count in the indictment (if for anything) is a count for grand larceny, and the second count (if for anything) is for robbery, which two counts cannot be joined in the same indictment.
    
      2. The first count is bad and insufficient in this, that it does not describe the bank notes with sufficient certainty.
    3. That notes on the Planters’ Bank are not subjects on which larceny can be committed, not being larceny at common law, nor made so by statute.
    4. That the second count is bad and insufficient, it not averring that the said Caldwell was first in fear.
    5. That the notes on the Planters’ Bank, are not sufficiently described.
    6. That the notes on the Planters’ Bank, are not subjects on which robbery can be committed.
    7. That the court erred in overruling the motion of his counsel, to put the district attorney to his election, to introduce evidence alone with regard to the bank notes, or to the pocket book.
    8. That the court erred in overruling- the objection of the defendant’s counsel to the introduction of evidence on the part of the state with regard to the supposed felonious taking, stealing and carrying away the notes on the Planters’ Bank.
    9. That the court erred in refusing to charge the jury, that, notwithstanding of their own knowledge they might know the notes on the Planters’ Bank named in the indictment, or the pocket book named in the indictment, were of some value; yet, unless the state had proved that the said notes were of some value, or that the pocket book was of some value; the jury was bound to find the defendant not guilty. And the court also erred in charging the jury, that, if they saw the pocket book, they might judge of its value.
    10. That the court erred in refusing to correct the minutes, by inserting the words, “ We the jury believe the defendant guilty, as charged in the indictment,” instead and in lieu of the words, “ we the jury, find the prisoner guilty in manner and form as charged in the indictment.”
    11. The court erred in overruling, the motion in arrest of judgment for the reasons assigned on the record.
    R. W. and C. W. Webber, for plaintiff.
    Attorney-General, contra.
    
   Mr. Justice Smith

delivered the opinion of the court.

The indictment, upon which the prisoner was tried in the court below, contains two counts; the first for feloniously stealing, taking and carrying away, one leather pocket book, of the value of one dollar and fifty cents, and two bank notes on- the Planters’ Bank, of the the state of Mississippi, of the value of one hundred dollars each, and the second, for feloniously taking and carrying away, one leather pocket book of the value of one dollar, and five one hundred dollar bank notes, on the Planters’ Bank of the state of Mississippi, of the value of one hundred dollars each.

The exception which I shall first notice, is that which is embraced in the first assignment of errors, and necessarily involves in its decision, the question presented by the 4th assignment. This exception presents the question of misjoinder, of the counts in the indictment.

It is stated in this assignment, and was insisted on in the argument at bar, that the first count, if good, is for grand larceny, and the second, if unexceptionable, is for robbery. And the conclusion sought to be deduced is, that, as the crimes of grand larceny and robbery are distinct in their nature, and the character and degrees of punishment affixed to them by the law, it is error to join them in the same indictment. But this exception appears to be based on an erroneous conception of the character of the second count, which is for larceny and not for robbery, as assumed in the exception, and good, if the notes of the Planters’ Bank, by that description can be the subject matter of larceny. The omission of the word, “ that,” in the second count, does not. change its character, or render it 'defective. It is well settled that the indictment should technically describe the offence of which the party stands charged, and an imperfection in this respect would be fatal.

The felonious taking and carrying away, the mere personal goods and chattels of another with the criminal intent to apply them to the party’s own use, constitutes the crime of larceny, and is its technical definition. It is true, that this offence is usually described in the entries by the terms, “ feloniously stealing, taking, and carrying away, &c,” but it is no defect if the word that” is omitted. See Starkie’s Crim. Pl. 84; 2 East, 336. 784.

But were the premises assumed good, the conclusion sought to be established would nevertheless be erroneous. Numerous authorities sustain the propriety of joining, in the same indictment, counts for robbery and larceny. See 1 Hale, 5, 6, 534-5; 2 East, 736, 754.

The validity of the 2d, 3d, 5th, 6th, and 8th assignments of error, depend upon the solution of the foregoing proposition, and, therefore, need not be separately considered.

At common law, it is admitted that larceny could not be committed of bank notes, bank bills, of bills of credit. But it is contended that the state has thrown around these objects of property the protection of her laws, and made it, by statute, felony for any person to steal them. Upon the construction of this statute, depends the validity of the indictment. The question to be settled is one deeply important to the state, and I regret that I have had neither the time nor means of thorough investigation. The statute referred to, is in the following words, viz: Robbery, or simple larceny, of obligations, bonds, bills obligatory, or bills of exchange, promissory notes for the payment of money, or notes for the payment of any specific property, lottery tickets, paper bills of credit, &c. See Rev. Laws, 299, sec. 20.

The words “ promissory notes for the payment of money,” and “paper bills of credit,” are, it is insisted, fairly construed, so as to embrace bank notes of the Planters’ Bank, or of any banking corporation.

It is a uniform principle, in the construction of penal statutes, that they are to be taken in their most restricted sense, in favor of the rights of the accused. .Was it then the evident intent of this section to make the theft of a bank note the crime of larceny?

It is unquestionably true that a bank note is a promissory note by a banking corporation, to pay a specific sum of money, and comes, therefore, strictly within the meaning of the generic term “ promissory note.” And I am, therefore, impressed with the conviction, that although the statute has not expressly enumerated bank notes, and made them subjects of which larceny could be committed under that description alone, yet as they are in verity promissory notes, possessing all the properties which constitute a promissory note, a count charging the larceny of a promissory note for the payment of money purporting to be a bank note, would be sustained by proof of the felonious taking, &c., of a bank note of the Planters’ Bank; and by a similar decision in the case of the Commonwealth of Virginia v. Hersley, 2 Virg. Laws, 153.

But in the case before us, neither count of the indictment charges the taking of promissory notes for the payment of money, purporting to be a bank note, nor in any respect conforms to the offence created by the 20th section of the act in relation to crimes and misdemeanors. I am, therefore, compelled to regard each count of the indictment as defective. In strict accordance with this opinion, will be found the decision in the case of The King v. Richard Craven, (2 East, P. C. 601,) which was an indictment upon the statute of 2 Geo. 2, C. 25.

As this defect goes to the foundation of the indictment, I will not notice the other questions arising upon the record.

The judgment must be reversed and the prisoner discharged.  