
    Hooper vs. State.
    1. An indictment for keeping-or passing counterfeit paper money, must set out, verbatim, the money so passed or kept, except when the money is destroyed by the defendant, or is in his possession; and then the indictment must set forth the fact of such destruction or possession.
    2. An indictment for fraudulently passing counterfeit money, must charge an intent to defraud the person to whom it was passed; and to sustain such indictment, it must appear that the money was delivered with knowledge of its character, and with the intent to defraud the person to whom it was passed. The indictment will not be sustained by proof of a salo of counterfeit money to a person who knew it to be counterfeit.
    Hooper was indicted in the criminal court beld for Davidson county, at the October term, 1846. The first countis as follows:
    “The grand jurors of the State of Tennessee, duly elected, empanneled, sworn and charged, to enquire for tbe body of the county aforesaid, upon their oath present, that Aletead Hooper, late of the county aforesaid, yeoman, with force and. arms, in the county aforesaid, on the tenth day of .September, in the year of our Lord one thousand eight hundred and forty-six, did feloniously and fraudulently pass to one Peter Bagwell, a false, forged and counterfeit bank note, made in imitation and resemblance of the genuine one dollar bank notes issued by the President, Directors & Co. of the Northern Bank of Kentucky, which genuine bank notes are and were current in the State of Tennessee; the said Bank of the President, Directors & Co. of the Northern Bank of Kentucky, being a bank and banking company authorized and established by law, in the State of Kentucky, which said false, forged and counterfeit bank note is in substance and to the effect following: [Here the note is set out,] which said false, forged and counterfeit bank note, he, the said Alstead Hooper, well knew at the time he passed it as afore said,.to be false, forged and counterfeit, contrary to the form of the statute in such case made and provided, and agains tthe peace and dignity of the state.”
    The fifth count is in the following words: — -“And the persons aforesaid, upon their oath aforesaid, do further present, that Alstead Hooper, late of the county aforesaid, yeoman, with force of arms in the county aforesaid, on the fourth day of September, in the year of our Lord one thousand eight hundred and forty-six, did, feloniously and fraudulently pass to one Peter Bagwell, several false, forged and counterfeit bank notes, made in imitation of the genuine bank notes of the following banks, to wit, one in imitation of the'genuine one dollar bank notes issued by the President, Directors & Co. of the Northern Bank of Kentucky, which said genuine one dollar bank notes are and were current in the State of Tennessee, the President, Directors & Co. of the Northern Bank of Kentucky being a bank and banking company authorized and established by law, in the State of Kentucky; one in imitation of the genuine three dollar bank notes issued by the Bank of Kentucky, the genuine three dollar bank notes of the said Bank of Ken- _ tucky being current in the State of Tennessee, the said Bank of Kentucky being a bank and banking company authorized and established by law in the State of Kentucky; one in imitation of the genuine five dollar notes issued by the Exchange Bank of Virginia, the genuine five dollar notes of the ^Exchange Bank of Virginia were and are current in the State of Tennessee; the said Exchange Bank being a bank and banking company, authorized and established by law in the State of Virginia; he, the said Alstead Hooper, at the time he so passed the aforesaid false, forged and counterfeit bank notes, well knew the same to be false, forged and counterfeit, contrary to the form of the statute in such 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 Alstead Hooper, late of the county aforesaid, yeoman, with force and arms in the county aforesaid, feloniously and fraudulently did keep in his possession several false, forged and counterfeit bank notes, made to imitate the genuine bank notes current in the State of Tennessee, issued by and for the following banks, to wit, one dollar bank notes issued by and for the President, Directors & Co. of the Northern Bank of Kentucky, said bank being established by law in the State of Kentucky; three dollar bank notes issued by and for the Bank of Kentucky, said bank being authorized and established by law in the State of Kentucky; five dollar bank notes issued by.and for the Exchange Bank of Virginia, said bank being authorized and established by law in the State of Virginia: he, the said Alstead Hooper, well' knowing the aforesaid bank notes to be false, forged and counterfeit, fraudulently kept the same in his possession, intending to impose them upon the community as good and genuine notes, issued by the banks aforesaid, contrary to the form of the statute in such case made and provided, and against thfe peace and dignity of the state.”
    The defendant moved the court to compel the attorney general to elect upon which of the counts he would proceed. This motion was overruled, and the defendant pleaded to the indictment “not guilty,” and a jury came under the direction of the presiding judge, W. K. Turner, and the proof was submitted to their consideration. It appeared, amongst other things, that one Bagwell was apprehended on a charge of having counterfeit money in his possession, fraudulently — and Bag-well, a witness in the case, stated that he purchased the counterfeit money which he had, from defendant, Hooper, at a gambling house kept by Hooper, in the town of Nashville^ for which he paid Hooper thirty-three cents in the dollar. He knew at the time of the purchase that it was counterfeit, and had frequently before that time purchased other counterfeit money of said Hooper.
    There was much other proof which need not be set forth. The judge charged the jury in part, as follows:
    “This is an indictment against the defendant, containing six counts. The first count charges that the defendant did, on the day alledged in the indictment, fraudulently pass to one Peter Bagwell, a certain counterfeit bank note described in the indictment, to one Peter Bagwell, and that the said counterfeit bank note is made in imitation of a genuine bank note of the Northern Bank- of Kentucky, which genuine note is current in the State of Tennessee, and at the time the defendant so passed the said counterfeit bank note, he knew that thfe same was counterfeit and base. The other four counts in the indictment contain the same charges as alledged in the first, except that the counterfeit notes alledged to have been passed, are upon different banks. The sixth count in the indictment charges the defendant with having in his possession all the counterfeit bank notes described in the five other counts in the indictment, fraudulently, with the intent to impose them on the community as good, knowing the same bank notes were counterfeit and base.
    These are the charges contained in the indictment, and which are submitted to you to decide — and before we proceed to consider the various requisites that are essential to constitute the offences with which the prisoner is charged, the court will declare to you the law as to what constitutes a passing under our statute. It is insisted by the counsel for the prisoner, that if Hooper sold to Bagwell the notes described in the indictment, Hooper and Bagwell knowing at the time that they were counterfeit, that this Would not be a passing; our statute declares, that no person shall fraudulently pay, or tender in payment, pass, or offer to pass, the counterfeit resemblance or imitation of any bank bill or note which circulates as currency. It is true, that the word pass, as used in this statute, when applied to bank notes, has a technical meaning; and chief justice Shaw says, in the case of Hopkins vs. the Commonwealth of Massachusetts, that the word pass, when applied to bank notes, means to deliver them as money» or as a known and constitutional substitute for money, and in order to a passing, the proof must show that the party who is charged, passed the counterfeit bill to another tor some valuable consideration, as for money, or to be used as money, with the guilty purpose of defrauding the community. Our supreme court declares, that the pledging a counterfeit bank note is not a passing or payment, in legal acceptation, or within the meaning of the act of assembly — this declaration, in the opinion of the court, is sustained by reason and common sense; a pledging cannot be a passing, because the party pledging does not part with his title, it is a mere deposit for a specified time. After the best consideration I can give to the position assumed by the counsel for the prisoner, that a selling' of counterfeit money, by a man who deals in counterfeit money to another, who knows that it is counterfeit, for genuine money at a discount or otherwise, is not a passing under onr statute, is not well taken in the opinion of the court; and the court charges you, that if you find from the testimony in the case, that the prisoner sold to Bagwell the notes in the indictment alledged, for money or other valuable consideration in exchange for them — this would constitute a passing, and so far as a passing is concerned, the offence would be made out. It remains for the court to state to you the other requisites that it takes to constitute the offences charged in the indictment.
    The first enquiry for the jury is, are the bank notes alledged in the indictment counterfeit? — 2d. was there a passing of the bank notes, or any one of them, as alledged in the indictment? 3d. were the said bank notes made in imitation of genuine notes, and did the genuine notes that they were made in imitation of, if made in imitation of any, pass as currency in the State of Tennessee? — ahd did the prisoner, at the time he passed them, (if he passed them at all,) know that they were counterfeit? The same enquiries will be made by you in relation to the sixth count, except as to the allegation of passing.
    The charge in the sixth count is, that the defendant fraudulently kept in his possession the various bank notes as in the indictment alledged, with the intent to impose them upon the community as good, in addition to the other material requisites that the court has stated to you. You will enquire for what purpose the defendant kept the bank notes? If he kept them at all, did he keep them with the intent to impose them upon the community as good and genuine, in other words did he keep them fraudulently? If you find from all the testimony in the cause, that he kept possession of the bank notes with the intent to impose them on the community as good, or that ■ he kept them for the purpose of selling them to accomplices, and intended that they should put them into circulation as currency, he knowing at the time that they were counterfeit. This would be a fraudulent keeping, and you would be authorized to say that the defendant was 'guilty, under the sixth count of the indictment.”
    The jury returned a verdict of guilty. A motion for a new trial was made and overruled. A motion in arrest of judgment was also made and overruled — and defendant appealed.
    
      A. Ewing and J. Trimble, for plaintiff in error.
    
      Attorney general, for the state.
   McKinney, J.

delivered the opinion of the court.

The bill of indictment in this case, contains six counts: the four first counts, charge, that the plaintiff in error, passed to one Peter Bagwell, certain forged and counterfeit bank notes; and use in all respects similar, except that the notes set out and alleged to have been passed, are different. There is no averment in either of said counts, of an intent to defraud the person, to whom the notes were passed, or other individual.

The fifth count charges, the passing of the notes mentioned in the preceding counts, but does not set them out. The sixth count is for fraudulently keeping in possession and concealing certain counterfeit bank notes, but also, omits to set out the tenor or substance thereof.

On the trial, a general verdict was rendered, finding the defendant guilty on all the counts of the indictment. A new tidal was moved for and refused, and judgment was rendered against the defendant below, that he be confined in the jail and penitentiary house of this state, for the term of three years, from which judgment he appeals in error to this court. The judgment is alleged to be erroneous on several grounds:

1st. It is argued, that the indictment is essentially defective in all the counts thereof. The objection to the first four counts is, that in neither of them is there contained, any averment of an intent on the part of the plaintiff in error, to defraud the person to whom-the notes are alleged to have been passed, or other person.

We think this objection is well taken*

The words of the 31st section of the penal code, on which those counts are framed, are, “no person shall fraudulently buy, pay or tender in payment, pass or offer to pass” &c. These words necessarily imply an intent to defraud; without such in-* tent, the act would not be fraudulent. It constitutes a mate* rial and substantive part of the offence intended to be created/ and must, therefore, be averred in the indictment. 1 Ch. Crim. L. 233, 245; 2 Rus. on crimes, 372.

It is not sufficient to charge this offence in the general word:, of the 31st section — if so, the averment of a scienter would no be necessary in the indictment, because, this section does no in terms, require it.

But, we think the latter clause of the 74th section, in express terms, makes such an averment necessary. After making certain exceptions, it provides, that “in all other indictment! for offences under this act, where, from the nature of tin -, offence, a fraud upon the public was intended, but no particu • lar person was intended to be defrauded, it shall be sufficien to charge the offence in the words of the act — without aver-ing or proving that any individual was intended to be defrauded.”

The offence contemplated in the 31st section, necessarily implies an intention to defraud the person to whom the notes aré passed, and consequently such intention must be alleged.

In the case of the State vs. Fergus, 6 Yerg., 345; which was an indictment on the 32d section of the act, for fraudulently keeping in possession a counterfeit bank bill, it was held by this court, that the indictment was defective in not charging that the counterfeit bill was kept with the intent to impose it on the community as genuine, that such intent constituted a material part of the offence.

In that case, it was argued, that such averment was unnecessary, because of the provision in the 73d section, that “in all prosecutions for offences under this act, where the fraudulent possession, or concealment of the thing, constitutes the offence, it shall be sufficient to allege in the indictment, that the party charged, fraudulently possessed of concealed such thing, without charging and proving that any particular person, corporation or company was intended to be defrauded.”

But the court held, that “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 principle of that case applies with much more force to an indictment in the 31st section.

It is argued, that the fifth and sixth counts are bad, because, the counterfeit notes, alleged in one of said counts to have been fraudulently passed, and in the other, to have been fraudulently kept and concealed, are not set out.* All the authorities agree, that it is essentially necessary in an indictment for forgery, that the forged instrument should be set forth in words and figures, if in existence, and within the control of the prosecutor. But, in the case of the Commonwealth vs. Hampton, (8 Mas. R., 107.) it is held, and wo think, correctly, that there are exceptions to this rule. As when the instrument has been destroyed by the person, or has remained in his possession, and perhaps in other cases, where the instrument cannot be produced. But, in every such case, that the exception may be admitted, it must be stated in the indictment.” See also, 2 Cow. R., 522.

We are of opinion, therefoi’e, that the plaintiff in error? cannot be convicted in either count ,of this indictment.

But, it is contended, furthermore, that the proof in this case, does not support the charge on theindictment, were the counts free from exception — that a sale of counterfeit bank notes is not a “passing” within the meaning of the 31st section of the act; and that upon this point, the jury were erroneously instructed. His honor stated, “that if the jury found from the evidence, that the person sold the notes to Bagwell for money or other valuable consideration in exchange therefor, this would constitute a passing, and the offence would be made out.” This charge, we think, is erroneous.

That the facts proved, make a case falling within the 32d section of the act, for fraudulently keeping counterfeit bank notes, we think very clear. And, but for the objection already stated to the sixth count of the indictment, which is framed in this section, the plaintiff in error, would have been properly convicted thereon.

But, we hold it to be equally clear, that the facts of this case, do not constitute a “passing” of the notes within the meaning of the 31st section. It does not contemplate a sale of spurious notes, as such, to one who takes them with knowledge of their true character; for in such case, the person receiving the notes as spurious could not be defrauded. Nor, could the intent to defraud be imputed to the person selling. —To make out a fraudulent passing of the counterfeit resemblance of bank notes, bills, &c. under this section, it must appear, that the person with knowledge of their true character, delivered them as good and genuine bank notes, bills &c., with intent to defraud the person to whom they would so delivered.

Other errors have been assigned, which need not now be considered as the judgment must be reversed for the reason already stated.  