
    Peek vs. The State.
    1. An indictment charging-the defendant with having passed counterfeit “dot lars,” describes with sufficient certainty the character of coin counterfeited. It is not necessary that it should show that it was a Spanish or Mexican dollar or a dollar of the United States. The species of coin must be described; nothing more.
    2. The 39th section of the act of 1829, ch. 23, declares it to be felony in any one, to make fraudulently any coin in imitation of the current coin of the State: Held, that an indictment under this section charging the defendant with fraudulently making coin to the likeness and similitude of the current coin was good. Where the words used in the indictment are equivalent to, or of more extensive signification than those used in the statute, such words are sufficient.
    3. Where an offence at common law was a misdemeanor, and has been raised by the act of 1829, ch. 23, to the grade of felony, the indictment need not charge that the act was done feloniously ; the 72d section of said act, having declared indictments framed according to common law form, good and valid to sustain a conviction under said statute.
    4. Evidence that the defendant had passed other counterfeit coins at other times, either before or after the offence for which he was indicted is admissible, to show that he knew the money passed by him in the particular case was counterfeit money. Such evidence is, however, a departure from the general rule, that proof of an offence not charged in the indictment shall not be heard; and, therefore, if the counterfeit coins alledged to have been passed at another time are not produced on trial so their baseness could be fully established, the proof that they were counterfeit should be positive and direct, so Jar as the knowledge and belief of a. witness would go.
    5. If incompetent evidence has been received, the court will award a new trial to the defendant in a criminal case, though it may appear to the court that the verdict of the jury is correct. The contrary rule has never prevailed in this State.
    At the June term, 1838, of the Circuit court of Overton county, the grand jury returned a true bill against James Peek, in the following words:
    “The Grand Jurors of the State of Tennessee, sworn and charged to enquire for the body of the county of Overton, in the State aforesaid, upon their oaths, present that James Peek, yeoman, on the first day of February, 1838, with force and arms, in the county of Overton, in the State of Tennessee, fifty pieces of false, forged, fraudulent, base,, adulterated and counterfeit money and coin of pewter, lead, tin, copper, steel, iron and other mixed metals to the likeness and similitude of the good, legal and current money of the State of Tennessee, called dollars, then and there falsely, deceitfully and fraudulently, did forge,-counterfeit and coin, against the form of the statute in such case made and provided, and against the peace and dignity of the State. And the grand jurors aforesaid, upon their oaths aforesaid, do further present, that the aforesaid James Peek, yeoman, afterwards, to wit, on the said 1st day of February, 1838, with force and arms, in the county of Overton, in the State of Tennessee, fifty pieces of false, fraudulent, counterfeit, base and adulterated coin to the likeness and similitude of the good, legal and current money and silver coin, current in the State of Tennessee, called dollars, as and for pieces of such good, legal and current money and silver coin, called dollars, then and there did deceitfully utter, tender and pass to one Edward N. Cul-lom ; he the said James Peek, yeoman, at the time he so uttered, tendered and passed the said fifty pieces of false, fraudulent, base, and counterfeit money and coin, well knowing, the same to be false, fraudulent, forged, base and adulterated and counterfeit, against the form of the statute in such case made and provided, and against the peace and dignity of the State.”
    The defendant pleaded not guilty to this indictment, and issue was joined upon the plea. The cause was continued till the June term, 1839, at which time a jury was selected and the proof submitted to them, and riot being able to agree on a verdict, a mistrial was entered by consent of parties. The cause was subsequently continued'until the June term, 1840, when it was again submitted to a jury of Overton, the Honorable A. B. Caruthers presiding.
    Edward N. Cullom, a witness on behalf of the State, testified that he was clerk and master of the chancery court at Livingston, in the county of Overton, and that by virtue of a decree in the chancery court at that place, he was directed to sell, and did sell certain lands and town lots, lying in the county of Jackson, and that the defendant James Peek became the purchaser of a tract of land for the sum of twelve hundred dollars; that the sale was completed about three o’clock, and the decree directed that the purchase money should'be collected in gold and silver. Witness told the defendant that he must come over to the inn and pay up the money, as he wished to leave. The defendant, however, did not come, alledging that he did not wish to be carrying about a large' sum in silver in the day-time. The payment was, therefofe, postponed till after supper at candle-light. The peculiar brightness and- newness of a portion of the coins offered'induced the witness to suspect their genuineness. Witness expressed his fears on this point to the defendant, who, thereupon, told him that the money-had not been in circulation, but had latterly been .drawn from bank.
    The witness then called upon some individuals, with a view to have their opinions; they expressed the; belief that it was good money, and he accordingly took of'them seven ty-two new bright dollars, all of which afterwards turned out upon fuller examination to be counterfeit. The money was produced on the trial and its baseness fully established. Other witnesses testified that he had borrowed from them Spanish milled dollars, of an old and dark appearance, to pay a part of this debt, and had given them new bright dollars, which were subsequently returned.
    Thomas L; Bransford testified that he had possession of a part of this money, that its appearance had induced suspicions of its genuineness — that it was of the thickness and circumference of good money, but that it was deficient in weight, thirty dollars of it lacking $2 62|- in weight, and that in his judgment a deficiency in weight, was the most invariable indication of counterfeit coin.
    Loftis, a witness on behalf of the State, testified, that after Peek had passed the money to Cullom for which he was indicted, he went to him to borrow some money, and that Peek told him he could get it. Peek then asked Loftis if he had any. old Spanish milled dollars; Loftis told him he had fourteen “fiat headsPeek took them and gave him in exchange therefor fourteen more, purporting to be silver, seven old, and seven new bright. looking dollars, resembling in appearance those passed to Cullom. Witness weighed them in scales, and found them deficient in weight. They were suspected-of being counterfeit, by himself and neighbors, and returned to Peek, who took them and gave him other money in their stead.
    The testimony of this witness was objected to by the defendant, but his objection was overruled, and the testimony admitted to go to the jury.
    The defendant introduced a witness who. testified that hef saw the defendant get one hundred dollars in silver from a Kentuckian on the highway, and gave him in exchange therefor, one hundred and five dollars in notes of the Commonwealth’s bank of Kentucky,' about the time he passed the money to Cullom.
    The jury-rendered a verdict of guilty against the défendant, and fixed his term of imprisonment in the jail and penitentiary house,of the State at three years.
    The defendant moved the court to set aside,this verdict. The court overruled the motion; The defendant also moved to arrest the judgment of the court, which was also overruled and judgment rendered in conformity with the verdict. The defendant appealed in error to the supreme court.
    
      James Campbell and S. Turney, for plaintiff in error.
    The evidence of Loftis was inadmissible. The principle, that proof of á crime not charged in an indictment shall be admitted to sustain the crime actually charged, is an anotaaly in the science of evidence, and an absolute departure from all those rules formed by the wisdom of ages for the protection of the innocent against surprise. How is it possible that the defendant should be prepared to rebut charges of distinct crimes not alledged in the indictnient, when no notice whatever is given of the intended introduction of such proof? They admitted that some adjudicated cases could be produced which admitted such testimony, but the correctness of such adjudications was doubted by able 'judges, and none were disposed to extend the application of the rule. The testimony of Loftis in this instance is introduced for the purpose of proving the guilty knowledge of the defendant in the uttering and passing of the counterfeit coins, or in other words, that the fact that he had passed counterfeit coins at one time, was evidence that hé passed other coins- at a different time, with guilty knowledge. He contended that Loftis’s testimony did not prove a crime in passing the money to him; his testimony was deficientin this respect ih two particulars. 1st. It does not prove conclusively that the coinspassed to Loftis were counterfeit. He merely suspected that they were court* terfeit and returned them. 2nd. Loftis does not prove that the coins passed to him were passed with a knowledge that they were counterfeit, consequently they would furnish no proof of guilt as to the passing to Cullom. Loftis’s testimony, therefore, was clearly inadmissible.
    2. The indictment does not describe the offence in the words of the statute. It does not aver that the defendant did make fifty pieces of base and adulterated coin, called dollars, “in imitation” of any coin current in the State of Tennessee. It omits these words of the statute altogether, and avers that the coins were forged “to the likeness and similitude” of the good current coin of the State of Tennessee. It is submitted whether in an indictment founded on a statute creating a felony, the State can depart altogether from the important and operative words of such statute, and substitute what the officer of the State may please to call synonymous words, or expressions conveying the same idea. This cannot be done. 1 Ch. C. L. 282, 286, 287, 288: 2 Mass. 131: Commonwealth vs. Morse, 2 Burrow, 1037.
    3. This offence is expressly declared a felony by the act of 1829', ch. 23, sec. 1, and yet it is not charged in the indictment to be a felony. The word feloniously is omitted. This word is a descriptive word in the charging of all felonies, whether by statute or by common law. Arch. 50, third Am. Ed. Though the grade of this of-fence may have been raised from a misdemeanor to a felony by the act of 1829, ch. 23, sec. 1, yet as the statute declares it a felony, it should be described as a felony. The 72d section of the act certainly could not have been intended to supersede its own provisions, so far as to make an indictment for a misdemeanor at common law, good as an indictment for felony.
    4. The indictment does not specify whether the coin alledged to have been counterfeit; was made in imitation of the current coin or dollar of the United States, or foreign dollar or coin current by law in the United States. There are several kind's of dollars current in theUnited States. 1st. The dollar of the United States 2d. The Spanish milled dollar; 3d. The Mexican dollar; 4th. The Peruvian dollar. The indictment should have specified which of these descriptions of coins were counterfeited. The species of the coin should be set forth in the indictment. Archb. 53, Am. Ed.
    5. By the 39th section of the act of 1829, ch. 23, “the fraudulent fnakjng of any coin in imitation of any coin current in this State by law or by usage,” is a penitentiary offence, &c. There are coins Current in this State by law and by usage both, yet this indictment does not specify whether the coin counterfeited was coin current by law or by usage. This indictment is too vague and indefinite. In England they have one statute prohibiting the counterfeiting the King’s coin; this is one offence. They have another statute to prohibit the counterfeiting foreign coin current in the realm; this is another and distinct offence. Our statute is in substance the same as the English law, except it combines in one act, and in one clause of that act, the two offences, and prescribes the same punishment. But certainly this was not intended to interfere with that rule which requires certainty in the description of offences; certainly this was not intended to dispense with the giving notice by the allegations of the indictment to the defendant, whether he should come prepared to defend himself against a charge of forging dollars, current by law, or those current by usage.
    
      Attorney General, for the State.
   Gkeen, J.

delivered the opinion of the court.

The defendant was indicted in the Overton circuit court, for passing counterfeit coin. The second count, of the indictment, charges, that “the said James Peek, on the said 1st day of February, 1838, with force and arms, in the county of Overton, in the “ State of Tennessee, fifty pieces of false, fraudulent, base and “ adulterated coins, falsely and fraudulently made and counterfeit- “ ed to the likeness and similitude .of the good, legal and current “ money and silver current coins in the said State of Tennes- “ see, called dollars, as and for pieces of such good, legal and cur- “ rent money, and silver coins, called dollars, then and there, false- “ ly, fraudulently and deceitfully, did utter, tender and pass to one “ Edward N. Cullom, he the said James Peek at the time he utter- “ ed, tendered and passed the said fifty pieces of false, fraudulent, “ base and adulterated counterf eit money and coins as aforesaid, “ then and there, well knowing the same to be false, fraudulent, “ forged, base, adulterated and counterfeit, against the form of “ the statutes,” &c.

The offence charged in the above indictment, is made felony by the act of 1829, ch. 23, sec. 39. The words in the act, in defining the offence!, áre' as follows, viz: “No person shall make, or begin fei “ make, prepare or complete, or begin to prepare or complete any “ base or adulterated coin, in imitation of any coin which may be “ current in this State, either by law or usage. No person shall “ fraudulently pass or offer to pass any such base' dr adulterated coin,”

L The first point insisted orí by the counsel for the' plaintiff in error is, that the offence is not charged in the indictment with sufficient precision and certainty: because the word “dollar” used in the indictment, may mean, a Spanish dollar, a Mexican dollar, or a dollar of the United States; to pass either of which, would constitute an offence distinct from that which would be committed by passing one of either of the other description. It is certainly true, that an indictment must state all the facts and circumstances, that constitute the offence, with such certainty and precision, that the defendant may know whether they constitute an indictable offence or not, in order that he may know how to plead, and how to prepare his defenee; and that there, should be no doubt of the judgment that should be given, if the defendant be convicted. Arch. Cr. Plead., 42-3: Rex vs. Horne, Cowp., 675. Therefore, money is described as so many pieces of the current gold and silver coin of the realm. The “species’’ of coin must be specified. Arch. Cr. Pl. 50. As if it be a “sovereign,” a “guinea,” or a “shilling,” the indictment must so describe it. Bui it is not necessary tó describe the devices upon the pieces of forged coin; it is sufficiently certain if it be described as the King’s current gold; called a “sovereign,” (Archb. Cr. Pl. 387,) because the word “sovereign” conveys a distinct, definite idea of a particular species of coin: whether, therefore, it bear the “likeness” of William the fourth or Victoria, is immaterial, and would not contribute. to any of the great ends for which certainty is required. So in the case now before us, the indictment describes the “counterfeit coin” as “dollars.” And whether they be coins of the United States, or of Spain, or Mexico, they are equally current ip this State, of the same appearance, and value, gild the word applies as well to the one as to the other, and conveys the sama definite idea of each. The devices upon them are somewhat different, hut scarcely more so than an English shilling coined in the reign of William and Mary, and one coined in the reign of Victoria.

But it is said, the offence is different; not different it may be replied, in any other sense than the passing the counterfeit resemblance of two different English shillings would be. Our law puts the passing the counterfeit resemblance of all coin, current in the State, upon the same footing. The “offence,” therefore, is the same in criminality, and in punishment. The difference is only such as will distinguish one dollar from another by the devices upon them. But as that is immaterial in other coins of the same species, we see no reason why we should hold it to be material in this case, merely because these dollars are coins ,of different countries. The dollar of Spain, Mexico and the United States, are of the same species: they are of the same value, and of the same general appearance; and in reference to them, the word “dollar,” conveys the same general idea.

2. It is next objected, that the indictment does not pursue the words of the statute. The statute says, no person shall make coin in imitation ’of the coin current'in the State, or pass the same. The indictment omits the words “make in imitation,” and uses the words, made to the “li/ceness and similitude” of the current coin, &c.’

It is true, that where a statute creates an offence, the indictment itself must charge the facts and circumstances which constitute the offence as mentioned in the statute. And it is better to pursue strictly the words of the statute,'as it precludes all question about the meaning of the expressions used. Arch. Cr. Pl. 53. But where a word, not in the statute, is substituted in the indictment, for one that is, and the word thus substituted is equivalent to the word used in the statute, or is of more extensive signification than it, and includes it, the indictment will be sufficient. Arch. Cr. Pl. 52. As in the cases put in the books, where the word “knowingly” in the statute, was represented by the word “advisedly” in the indictment, or the word “wilfully” in the statute, by “maliciously” in the indictment. In these cases the indictments were good,because the words substituted were equivalent to those in the statute, or of more extensive signification. In the case now before us, this rule applies. The word “imitation” in the statute, is represented- in the indictment by the words likeness and similitude. Now these words certainly are of more extensive signification than the word “imitation,” and, therefore, do not, by their substitution, vitiate the indictment.

3. The nextobjection is,that the word “feloniously” is omitted in the indictment; and it is certainly true, as a general rule, that an indictment for a felony, whether at common law or by statute, the word “feloniously” must be employed. Arch. Cr. Pl. 59. But the 72d section of the act of 1829, ch. 23, declares, that “all indict- “ ments for offences enumerated in this act, which are offences at “ common law, shall be good, if the offence be described or charged “ according to common law, or according to this statute.” The facts, which constitute the offence charged in this indictment, were an offence at common law, and although not of the same grade that the statute creates, still we understand the words of the above recited section to embrace the case. It does not confine the provision, that the common law indictment shall be good, to cases which were felonies at common law, nor do we suppose that it was so intended. The purpose of the legislature seems to have been to cut off all ground for cavil about mere forms, provided the party charged with the offence, were distinctly notified by the indictment of the nature of the accusation. So that if the facts which constitute an offence, be one by the statute and by the common law, an indictment, charging these facts, in the words used in the common law form, or in the words of the statute, shall be good.

4. The next objection is taken to the admissibility of Loftis’s testimony. The evidence of this witness was introduced to prove that the prisoner at another time than that charged in the indictment, passed other counterfeit coin'; and that to establish the guilty knowledge, that the coin charged in the indictment to have been passed, was counterfeit. Loftis says that he went to Peek, the defendant, to borrow money; defendant told him he could get it, and asked witness if he had any old Spanish milled dollars. Witness said that he had fourteen “flat heads.” Peek got them of witness, and gave in exchange fourteen more, purporting to be silver; seven old and seven bright new looking ones, resembling in appearance, the money passed to E. N. Cullom. The same bright new dollars were weighed by witness in scales and found wanting in weight; were suspected of being counterfeit by witness and neighbors, and returned to Peek, and were taken back and other money placed in their stead. This evidence was objected to at the time, but the objection was overruled. There is no doubt, but that evidence, that other counterfeit money was passed by the prisoner at other times, either before or after the offence for which he was indicted, is admissible, to show his guilty knowledge in the particular case. Russ, on Cr. 86: Roscoe, Ev. 68. If a party charged with passing counterfeit money, has frequently passed other counterfeit money, especially, if it be of the same kind, it furnishes a strong presumption, 'that he knew it to be counterfeit. The accidents of trade can hardly be supposed to have placed in his possession so much spurious money; and if it be of the same kind, the presumption is greatly strengthened, because it indicates that he is a dealer in the article. But we are of opinion, that in order to render this evidence admissible, it must be proved that the money so passed was counterfeit. Roscoe, Ev. 68. It is not enough that there should be suspicion merely. If the coins or notes thus passed at another time, are not produced at the trial, so that, whether they are counterfeit or not, may be clearly established, the proof that they were counterfeit (so far as the belief and knowledge of the witness can go,) ought to be direct and positive. If such proof be not required, a man’s reputation and liberty might be endangered by the vague suspicions-of every person with whom he had dealt, and to whom he had paid money for a series of months, without the possibility of defending himself. The suspected money is not produced, so that its genuineness may be established, and the suspicion counteracted — and suspicions of witnesses, not amounting to belief, nor creating an opinion on their part, that such other money was counterfeit, is made the means of creating in the minds of the jury, the belief (not entertained by the witness himself,) that the prisoner is guilty.

It is contrary to the general rules of evidence, that proof of a transaction not charged in the indictment should be received at all. The certainty required in an indictment, is intended to give the party distinct notice of the facts charged against him, and to put him upon his defence. To permit evidence, therefore, of facts “not charged” ■in the indictment, would seem inconsistent with this view, because the party is not advised, by anything in the proceedings against him, that such facts are to be proved, until he hears the evidence on his trial. Hence such evidence is not allowable, except in cases where guilty knowledge constitutes the gist of the offence; and this from the necessity of the case. But it would be extremely dangerous to carry this exception to the general rule farther than it has gone; and that is to require proof that the money which was passed at another time was counterfeit. By proof we do not mean, that the coins must be assayed by one skilled in that art, or that bank notes must be proved by the bank officers to be counterfeit, but the witness must be convinced of the fact, if the evidence depend upon opinion or if upon facts stated by him, they must be such as to establish the fact, that the money was counterfeit. This we think was not the character of Loftis’s testimony, and, therefore, are of opinion, that it was improperly received by the court below.

5. The rule insisted on by the Attorney General, that although incompetent evidence was received, yet if the court see that there was enough, independent of such evidence, to convict the prisoner, it will not disturb the verdict, does not prevail in this State. It has been uniformly held here, that if incompetent evidence has been received, that might have influenced the jury, a new trial will be awarded; for it cannot be seen how far such evidence did influence them, and we cannot say that the prisoner has been convicted by a jury of his peers, on evidence competent for that purpose. Reverse the judgment,  