
    State v. Jonathan Wilkins.
    The expression, in an indictment for passing a counterfeit bank bill, that the bill “ was made in imitation of, and did then and there .purport to be, a bank note, for the sum of five dollars, issued by the President, Directors and Company of the Bank of Cumberland, by and under the authority of the Legislature of the State of Maine, one of the United States of America,” is a sufficient averment of the existence of such bank, and that it is an incorporated institution.
    The words “ ltank bill ” and “promissory note” in the fourth section of the statute, — Rev. St. c. 96, § 4, — which provides against the offence of passing counterfeit bank bills, are synonymous; so the words “ bank note” have the same signification; and an indictment, which charges a respondent with having uttered a counterfeit “bank note” is sufficient, witjiin that section.
    
      Under the fourth section of'chapter 96 of the Revised Statutes, the uttering, passing and giving in payment a counterfeit bank bill are distinct offen-ces; and an indictment for uttering and passing such bill, averring the knowledge of the respondent that the bill was counterfeit, is sufficient, though it do not allege that the respondent uttered and passed it as a true - bill.
    
    The allegation, in an indictment for passing a counterfeit bank bill, that the bill passed “ was made in imitation of, and did then and there purport to be, a bank note for the sum of five dollars, issued by the President, Directors and Company of the Bank of Cumberland, by and under the authority . of the Legislature of the State of Maine,” is merely an allegation that the bill was fictitious, and is not an attempt to set forth the bill according to its legal effect and purport,' in such way as to lay the foundation for a variance between the allegation and the terms of the bill.
    It is discretionary with the Suprem^Court, after they have adjudged an indictment sufficient upon demurrer^allow the respondent to plead anew, and remand the case to the county court for trial, or not.
    Indictment in four counts, the first and third of which were for uttering, passing and giving in payment counterfeit bank bills, and .the second and fourth for having in possession such bank bills with intent to pass them.
    The first count alleged that the respondent “ wittingly, deceit- ‘ fully and unlawfully did utter, pass and give in payment to one ‘Elisha W. Fairbanks, of Mendon in the State of Vermont, one ‘ certain false, forged and counterfeited bank note, which said note ‘ was made in imitation of, and did then and there purport to be, a ‘ bank note for the sum of five dollars, issued by the President, Di- ‘ rectors and Company of the Bank of Cumberland, by and under ‘ the authority of the Legislature of the State of Maine, one of the ‘ United States of America, made payable to S. Beare, or bearer, ‘ on demand, numbered two hundred and seventy four, and dated ‘ the first day of September in the year of our Lord one thousand ‘ eight hundred and thirty five, with the name of S. E. Crocker ‘ thereto subscribed as President of said bank, and the name of C. ‘ C. Tobie countersigned thereon as Cashier of said bank, and was ‘ in the words and figures following, that is to say,
    
      “The State No. 274 of Maine.
    
      “ The President, Directors and Company of the Bank of Cum- “ berland promise to pay Five Dollars to S. Beare, or bearer, on “ demand.
    Portland, 1st Sept. 1835.
    “ C. C. Tobie, Cash’r. S. E. Crocker, Pres’t,”
    ‘ He, the said Wilkins, then and there well knowing the said note to ‘ be false, forged and counterfeited, as aforesaid, with intent to ‘ defraud the said Elisha W. Fairbanks, contrary,” &c. Those parts of the other counts on which any question arose were substantially the same with the count above set forth.
    The respondent demurred to the indictment, and the county court adjudged the indictment sufficient; to which decision the respondent excepted.
    
      Hyde & Peck for respondent.
    To bring the offence within the statute, all the facts must be directly and positively alleged, which constitute the crime, and which it would be necessary to prove.
    1, There is no allegation of the existence of the bank. The averment, that the note “did then and there purport to he a hanlc note ‘for the sum of five dollars, issued hy the President, Directors and * Company of the hanlc of Cumberland, hy and under the authority ‘ of the legislature of the State of Maine,” is an allegation of the purport of the bill, and not of the actual existence, or incorporation, of the bank by or under such authority. If the averment will bear the other construction, it is bad, as the existence of the bank is there alleged only by way of recital. Passing bills upon a fictitious bank, having no existence, might be a misdemeanor, but not within the statute; hence proof of the existence of the bank is always given on trial. As the incorporation of a bank is not a public but a private act, it must be pleaded and proved, — and most clearly in case of a bank under a foreign jurisdiction.
    2. If, upon general principles, the existence of the bank need not be alleged, yet the indictment is bad. The statute (ch. 96, §§ 3 and 4, p. 434) extends only to banks “ incorporated hy the Con- ‘ gress of the United States, or hy the legislature of any state or 
      
      ‘ territory of the United States.” The court cannot take judicial notice that the Cumberland Bank was incorporated hy such authority ; hence it should have been averred.
    3. It is not alleged that the bill was passed as true. The very essence of the crime is the passing a false, or forged, instrument as genuine, or giving in payment the false as true. This defect is not cured by the words “ wittingly, ” “ wilfully, ” “ and with intent to defraud.” “ Wittingly signifies knowingly, unlawfully, without authority; and as to the words deceitfully and with the intent to defraud, the deceit, or fraud, might consist in something other than passing the instrument as true. These general words in pleading are inoperative, except to show an intent, which must be based on facts previously alleged.
    4. The purport and tenor of the instrument, as alleged, do not agree. It is alleged that the bill purports to be issued by and under the authority of the legislature of the State of Maine. The words— “ The State of Maine,” in the tenor, indicate only the place of execution, and imply no authority from the State of Maine. This defect is fatal.
    5. The crime created' by the statute is the uttering, passing, or giving in payment, any “ bank bill or promissory note;” the indictment is for uttering and giving in payment a “ bank note.” The words of the statute in the description of the subject matter must be followed. 1 Hale 220. Rex v. Davis, Leach 55. Rex v. Turner, 1 Mood. C. C. 239. Rex v. Compton, 7 C. & P. 139, [32 E. C. L. 469.] 2 East P. C. 601-2.
    
      Israel P. Richardson, state’s attorney.
   The opinion of the court was delivered by

Bennett, J.

The county court, upon a demurrer to this- indictment, held it sufficient; and the case comes before this court upon exceptions to such decision.

The demurrant insists, that the indictment is bad for sundry reasons. It is said, that there is no allegation in it of the existence of thebank. If this was so, the objection would have been well taken. The allegation is, that the respondent did pass, &c., one certain false, forged and counterfeit banlc note, which said note was made in imitation of, and did purport to be, a banlc note, issued by the President, Directors & Co. of the Bank of Cumberland by and under the authority of the Legislature of the State of Maine, one of the United States of America. The statute of 1818, Slade’s Ed. 261, provides, that, if any person shall counterfeit, &c., any bill, or- note, issued by the President, Directors &' Co. of the Bank of the United States, or by the Directors of any other bank, by or under the legislature of any of the United States of America, he shall, on conviction, be confined, &c. In the Revised Statutes, p. 434, the form of the expression is somewhat changed, and prohibits the counterfeiting any banlc bill or promissory note, issued by any banking company, incorpor ated by the Congress of the United States, or by the legislature of any State or Territory of the United States. No doubt, under the Revised Statutes, the Bank must be an incorporated institution, and it must, in substance, be so alleged in the indictment. So I conceive, that, under the statute of 1818, the bill must have been counterfeited upon an incorporated institution, and that the Revised Statutes were not designed to introduce any new rule. The expressions, a Banlc note, or bill, issued by and under the authority of the Legislature of one of the United States of America, imply, by necessary implication, that it was issued by an incorporated institution, and consequently such an averment in an indictment must be held sufficient. This indictment is conformable to the precedent furnished by Judge Aikens, in his book of forms, as applicable to the statute of 1818, and which, I believe, was introduced into general use. If the Revised Statutes introduced, in this particular, no new rule of law, ■then an indictment under the old statute would be good under the Revised Statutes.

It is said, that, as the indictment charges the offence to consist in uttering and giving in payment a certain counterfeit banlc note, and as the statute creating the offence makes it to consist in uttering and giving in payment any counterfeit banlc bill or promissory note, the offence in the statute is not well described in the indictment. The words of the statute, in the description of the subject matter of the -offence, must be substantially followed, it is true, and the of-fence be brought within all the material words of it. We think that the words bank bill or promissory note, as used in the statute, are synonymous. The words used in the indictment, bank note, are also synonymous with banVbill. Bank pote, bank bill, and promissory note, issued by the directors of a bank incorporated by and under the legislature of this state, mean the same thing. The expression, bank bill or promissory note, in the statute, is an evident tautology; and had the term, or bank note, been also added, it would, none the less, have been a tautology. See Brown v. Commonwealth, in error, 8 Mass. 59, and also Commonwealth v. Carey, 2 Pick. 47.

It is farther objected to this indictment, that it is not alleged that the bill was passed as a true bill. In an indictment upon a penal statute the prosecutor must set forth every fact, that is necessary to bring the case within the statute. The indictment in this case has four counts; the 1st and 3rd are for uttering, passing and giving in payment. The 2nd and 4th are for having in possession counterfeit bills with an intention to utter, pass and give in payment. The statute of 15 Geo. II provided, that, if a person should utter, or tender in payment, any false or counterfeit money, knowing the same to be false or counterfeit, he should, on conviction, be subject to certain penalties. In the case of The King v Franks, 2 Leach Cr. L. 644, the indictment charged the respondent simply with uttering a piece of false and counterfeit money ; and it was held that the offence was complete, even though it was uttered as base coin. In that case the indictment did not state the uttering to have been in payment, as and for a piece of good money ; and if it had, the evidence in the case would have rebutted the charge. It was considered, in that case, that, as the statute was in the disjunctive, the uttering and tendering in payment constituted two independent and distinct acts. So I think our statute, providing against uttering, passing, or giving in payment any false and counterfeit bill, makes the acts distinct and independent, and that either the uttering, passing, or giving in payment, would constitute an offence against the statute, provided the respondent had a knowledge that the money was counterfeit.

Whether, if this had been an indictment simply upon the last clause, that is, for giving in payment a false and counterfeit bank bill, it would have been necessary to have alleged that it was given in payment, as and for a true bill, it is not now necessary to decide. In the case State v. Randall, 2 Aik. 89, we have the form of an indictment like the present, under the statute of 1818; and it was held sufficient. Neither in that statute, nor in the Revised Statutes, is it made a part of the description of the offence, that the counterfeit bill shall have been uttered, passed, or given in payment, as and for a true bill; and it is unnecessary for us to decide what would have been necessary, if this had been a part of the description of the offence. The offence of disposing and putting away forged bank note was held to be complete, though the per-: son, to whom they were disposed of, was an agent for the bank to detect utterers, and applied to the prisoner to purchase forged bank notes, and had them delivered to him as forged notes, for the purpose of disposing of them. Russ. & Ry. C. C. 154.

It is said, also, that the indictment is bad, because there is a re-pugnancy between the purport and tenor of the bill, as alleged in the indictment. We think there is no ground for this objection. The indictment set forth the counterfeit bills in their words and' figures, as it was proper it should do; and the allegation, that the bill, charged to be forged in each count, was made in imitation 'of, and did purport to be, a bank note, issued by the Bank of Cumberland, is nothing more than an allegation that the bill was a fiction, and it is no attempt to set forth the forged bill according to its purport. It may be true, that, where the pleader first sets out the bill according to what he claims to be the legal purport, and afterwards sets it out according to its tenor, and there is a repugnancy, it may be fatal; but that principle does not apply to this indictment.

The result to which the court have come is that the indictment is sufficient.

After the decision of the court was pronounced, the prisoner was permitted to plead over, — the court considering it a matter in their discretion to allow it, or not; and the case was remanded to the county court to be tried upon a plea of not guilty.  