
    Fergus vs. The State.
    An indictment for fraudulently keeping in possession and concealing the counterfeit resemblance of bank notes, under the thirty-second section of the act of 1829, ch. 23, must charge that the defendant kept and con-sealed them with an intent to impose them on the community as good money.
    When the evil intent constitutes a material part of the offence, it must be charged.
    The 73d section of the act of 1329, ch. 23, does not do away the necessity of a particular description of the offence in the indictment; it is only intended to do away the necessity of charging and proving that some “particular person, corporation or company was intended to be defrauded.”
    An indictment for passing counterfeit bank bills, or for keeping and concealing them, must aver the existence of the bank or corporation of whose notes they are the counterfeits, or resemblance.
    The plaintiff in error, John Fergus, was indicted in the circuit court of Rutherford county, and tried upon the following indictment: “The grand jurors for the State of Tennessee, duly elected, empannelled, sworn, and charged to enquire for the body of the county of Rutherford aforesaid, upon their oath present, that John Fergus, late of said county, yeoman, on the nineteenth day of October, in the year of our Lord one thousand eight hundred and thirty-two, with force and arms, in the county aforesaid, one false and counterfeit resemblance and imitation of a bank bill of the President, Directors, & Co. of the bank of the United States of the denomination of twenty dollars, in the words and figures in substance as follows:” [here a copy of the counterfeit bill is inserted in the indictment] “as and for a good legal and current bank bill of the President, Directors, & Co. of the bank of the United States, then and there did fraudulently utter, tender, pay and pass to one David Fuquay, he, the said John Fergus, at the time he so uttered, tendered, paid and passed the said false and counterfeit resemblance and imitation of a bank bill of the President, Directors & Co. of the bank of the United States as aforesaid, then and there and knowing the same to be false and counterfeit, contrary to the act of the general assembly in snch case made and provided, and against the peace and dignity of the State. And the jurors aforesaid, upon their oath aforesaid, do further present, that John Fergus, late of said county, yeoman, on the nineteenth day of Oc tober, in the year of our Lord one thousand eight hundred and thirty-two, with force and arms, in the county of Rutherford aforesaid, had about him, the said John Fergus, and did fraudulently keep in bis possession, and conceal, the counterfeit resemblance and imitation of a bank bill of the President, Directors & Co. of the bank of the United States, of the denomination of twenty dollars, in the words and figures in substance as follows:— [Here a copy of the counterfeit bill is inserted in the indictment.] “he, the said John Fergus, then and there well knowing the said false and counterfeit resemblance and imitation of a bank bill of the President, Directors & Co. of the bank of the United Slates, fraudulently kept in his possession, and concealed as aforesaid, to be false and counterfeit, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the State.” The record states, that “then came the defendant in proper person, and the attorney general who prosecutes in behalf of the State, and upon said indictment being read to him, he pleaded not guilty, and for his trial puts himself upon the country; and the attorney for the State doeth the like.”
    The jury acquitted the prisoner upon the first count of' the indictment, and found him guilty in manner and form as charged in the second count. The prisoner moved the court to arrest the judgment upon said finding; and assigned his reasons in arrest as follows:
    1. The indictment in the second count thereof does not charge that defendant kept or concealed the bank bill described in said count, with the intention of passing at as and for a good and current bank bill.
    2. The count charges defendant with fraudulently concealing said bill, without setting forth the facts to show what would constitute such fraud.
    3. The charge in said count does not contain a certain description of the crime of which defendant is accused.
    4. Said count is in othe'r respects informal, insufficient, and wants substance.
    ' 5. The said count does not charge or aver that there was in fact or law such a bank as the President, Directors & Co. of the Bank of the United States; nor does it aver the counterfeit resemblance of the bill described was a fictitious instrument. ”
    The reasons in arrest of judgment were overruled by the court, the motion disallowed, and judgment pronounced on the verdict of the jury. Prom this judgment the defendant prosecuted an appeal in the nature of a writ of error to this court.
    
      Andrew J. Hoover, for plaintiff in error.
    The indictment should exhibit such a certain and definite description of the offence as would authorize the court to give judgment, and show posterity what law is to be derived from the record. If the facts stated in the indictment might be true, and yet the defendant be innocent of any crime, the error would be fatal. 1 Ch. Cri. L. 169, 231: 2 Yer. Rep. 22.
    The prisoner, if guilty of the charge in the second count of this indictment, must have had possession of the counterfeit bank bill, knowing it to be such, and intending to pass it for genuine money. This intention is the gist of the offence. Yet it is not alleged in the indictment either directly or indirectly. Only the word “fraudulently” is used, which more frequently applies to contracts than to crimes. A man may fraudulently conceal counterfeit money, and yet be innocent of a penitentiary offence. He may Lave passed a counterfeit bill for a ..... , , , . . good one, believing it to be such, and alterwards getting possession of it by finding, he may conceal it fraudulently, not however to utter it, but to prevent the person to whom he passed it from recovering its value. The exception taken to the second count of this indictment is not for matter of form merely; the imperfect description of the offence exposed the prisoner to the danger of an unjust conviction. The jury on their retirement carried with them a bill of indictment, exhibiting not the material issue, whether or not the prisoner fraudulently concealed the bill with the intention of passing it as good money, but the immaterial issue whether or not he simply fraudulently concealed it. He may have concealed it to defraud some previous holder of it, and not to defraud any one by passing it to him for a genuine bill.
    If there be any offence of which an evil intention makes a substantive and material part, it is surely that with which the prisoner is charged in the second count of this indictment. An evil intent ought therefore to have been alleged. 1 Ch. Crim. L. 233, 245: 6 East, 474: 5 T.R. 129.
    It is not always sufficient that the indictment should pursue the words of a statute. 1 Ch. Cr. L. 275: Rex vs. Mason, 2 T. R. 581: Davy vs. Baker, 4 Bur. 2471. Suppose a person indicted under the 41st section of our penal act for passing a forged receipt; it would not be sufficient to charge the offence in the words of the act, without stating such facts as might be requisite to show that a crime had been committed, as for instance the fact of an indebtedness to the person on whom the receipt was forged. ' 1 Yerger’s Reports, 432.
    Admitting the second count by the common law to be defective, yet it is contended the defect is cured by the 73d section of the penal act, which makes it sufficient to charge “thatthe party fraudulently possessed or concealed such thing, without charging or proving that any particular person, corporation or company was intended to be defrauded.”
    This section cannot have the extensive operation attrib-utedto it. It is a criminal statute and must he construed strictly. The latter clause “without charging or proving,” &c. explains and defines the meaning and operation of the whole section. 4 Bac. Ab. 14, 76 section in title Statute (letter I.)
    The sufficiency of an indictment at common law for fraudulently concealing counterfeit money without stating some person intended to he defrauded, might reasonably he questioned. It was therefore a precaution to make it unnecessary to charge and prove an intention to defraud any particular person. It was a precaution at least as necessary as the defining of larceny, forgery and other felonies, which our Legislature thought proper to do. The statute of George II, making it felony to steal sheep or other cattle, was construed to extend to nothing but sheep. The words “or other cattle” were considered too loose and general to create a felony. 1 Bl. Com. 88. In the construction of this 73d section we do not ask such strictness. We do not seek to destroy the force of the general expression, “that it is sufficient to charge that the party fraudulently possessed and concealed the thing.” We would give these words their proper effect,, taken in connection with the succeeding clause. The general and particular clauses taken together, mean that the offence declared unlawful in the 32d section, for which this prisoner is arraigned, may be charged generally, without averring that any particular person was intended to he defrauded. But they cannot mean that the indictment might be so general that the allegations might he true, and yet the accused be innocent. It was never intended that any fact or circumstance should be omitted in the indictment, which fact or circumstance might he material to show the fraudulent possession or concealment to amount to a crime.
    
      rhe ’74-til section says, “it shall be sufficient to charge the offence in the words oí the act, without averring or proving that any individual was intended to be defrauded.” This and the 73d section apply equally to this Ease. Now it is no crime to intend to commit burglary, aison, or even murder. One may proceed farther. He may provide himself with a false key, fire or gun, with which to perpetrate the offence; still the crime is not committed. This being a general doctrine in criminal cases, it might have been plausibly argued, that by the 32d section, no man ought to be punished, until he should, at least, have attempted to pass a counterfeit bill upon some individual. The policy, therefore, of the legislature, in enacting the 73d and 74th sections, was to punish such as might conceal counterfeit money with the intention of uttering it, although no attempt to pass it to an individual might be made. It was not the policy or intention of the legislature to make it sufficient to charge “that the party fraudulently possessed or concealed the thing,” without such allegations as show the possession and concealment to be criminal. Other words of the 32d section are, “conceal the resemblance of a bank bill which circulates as currency,” &c. Pursue the principle, that it is sufficient to describe the offence in the words of the act, or “that the party fraudulently possessed or concealed the things,” and see to what absurdity it will lead. Suppose the indictment to allege “that the party fraudulently possessed or concealed the resemblance of a twenty dollar bank bill, which circulates as currency,” &c. without setting out the bill particularly, it would evidently be insufficient. Yet the toleration of such a loose and general charge would not be more dangerous to the accused than the error in this indictment of which we complain. Tolerate such defects, and you had as well suffer the indictment to recite the act and simply aver that the accused has violated it.
    By referring to the first count in this indictment, we may demonstrate the reasonableness of the construction T . ,, T , . . 1 contend tor. In this count, it was necessary to state, and it is stated, that Fergus passed the bill knowing it to he counterfeit. Yet the words of the 31st section are general, that no person shall fraudulently pass, &c„ without stating it to be with a knowledge that the money was counterfeit. It being necessary to aver a scienter under the 31st section, it is necessary to aver it under the 32d section, on which the second count is founded. Of this opinion seems to have been the attorney general who drew this indictment, for in the second count as well as in the first, a scienter is alleged. But if by the 73d and 74th sections it is only necessary to charge “that the party fraudulently possessed or concealed the thing,” it is to no purpose to stale either a scienter or evil intent. Yet both these are facts equally necessary to show the fraudulent possession or concealment to be criminal. To say that a scienter is necessary in the first count, but that the 73d and 74th sections make it unnecessary in the second count, argues that the authors of our penal code were either incompetent or very unjust. It would prove that they intended to make it more easy to punish him who barely intended to pass counterfeit money, than him who had actually passed it; that the criminal, who had acted out his evil intentions, by uttering counterfeit money, thereby committing a very heinous public offence, and probably inflicting a private injury never to he redressed, shall have the charge against him set down in full, so as to have a fair and impartial trial without the danger of being punished by means of an immaterial issue; while on the other hand, the accused, who yet has his bad intentions in his own breast and may repent, is deprived of the same privilege.
    If it be sufficient in the indictment to follow the words of the act, it is necessary to follow those words fully. The words of the 32d section are, that no person shall conceal the resemblance of any hank bill which circulates as currency of any corporation “that exists.” It is not stated in the second count, that the President, Directors and Co. of the Bank of the United States is a corporation “that exists.” The indictment, therefore, does not follow strictly the words of the act. According then to the doctrine contended for on the part of the State, judgment in this case ought to have been arrested. This court has no more right to depart from the literal words of the statutes of Tennessee to notice the existence of the United States’ Bank, than to notice and act upon the well known principles of the common law.
    A. Hays, Atto. Gen. for 7th Sol. Dis. for the State.
   Green, J.

The defendant was convicted upon the second count in the indictment which charges that “he had about him, the said John Fergus, and did fraudulently keep in his possession, and conceal the counterfeit resemblance and imitation of a bank bill of the President, Directors & Co. of the bank of the United States, of the denomination of twenty dollars, in the words and figures in substance as follows,” &c. The indictment then sets out the note, and concludes with an averment that the defendant knew that the resemblance of a bank note so fraudulently kept in his possession and concealed, to be false and counterfeit.

This indictment does not charge the offence contemplated in the thirty-second section of the penal code, with sufficient certainty. The possession of counterfeit resemblances of bank notes, with intent to impose them on the community as good money, constitutes the offence .intended to be punished. The indictment ought to have so charged it, for where the evil intent constitutes a material part of the offence, it ought to be charged. 1 Ch. Crim. L. 233, 245: 6 East 474: 4 T. Rep. 129.

It is supposed the seventy-third section of the act renders a particular description of the offence unnecessary, and makes an indictment charging in the words of the act good. That section only intended to do away the necessity ot charging and proving that some ‘‘particular .person, corporation or company was intended to be defrauded.” The intent to commit a fraud by passing the counterfeit notes, must still be charged, though it may be charged generally, without specifying any “particular person, corporation or company intended to be defrauded.” The indictment should also have averred the existence of the bank of the United States,

Peck, J.

There are obvious defects in the record before us. The plea of the prisoner is given historically ; it is in the past, not in the present tense, as it should be; nor does it purport to be the language of the prisoner. The defendant “pleaded not guilty, and for his trial puts'himself upon his country.” This is no good plea. But this is to be understood only as the expression of my opinion on this point.

It is" not charged in the bill of indictment, that the corporation from which .the forged bill purports to have issued, is a corporation that exists or may exist, or that no such corporation exists; one or other averment was indispensable to have brought the case within either the 32d or 33d section of the act; and this defect is not cured by either the 72d, 73d or 74th sections. But on the contrary, these sections require that at least the charge must be in the language of the act to make the bill good. Without this charge either affirming the existence or non-existence of such a corporation, we have no authority for saying that the bill of indictment is founded on the act. The rule is, that the bill of indictment must bring the case within the words of the statute, at least substantially. 2 Hale’s P. C. 168, 192. That it is not a sufficient bill of indictment at common law, will appear from the fact, that it wants an averment of fraudulent intent to cheat some one in particular, or the public in general.

It may be insisted, that if the charge of the existence of such a corporation be necessary, that it must be proved by the production of the charter. That may be true; but it is no good argument to show that strict forms of law shall be abandoned because of the inconvenience it may bring upon the State. The same argument would prove that the bill of indictment might be used not only to save appearances under the constitution, but that it may want form or substance, or that the rules of evidence under it should be changed for the sake of convenience. The State must make out her case, first, by a sufficient charge in the bill, and second, by proof to sustain it. The first of these is wanting. The judgment must be arrested, and the prisoner remanded to be further proceeded against.

Judgment reversed.

Catron, Ch. J. and Whyte, J. concurred with Green and Peck, Judges, except the first point made by Peck, J. in his opinion.  