
    The State vs. Jose Casados.
    
      Bank bills are such securities for payment of money, as shall he included under the words “hill or promissory note,” of the Act of Assembly, 1736-7 ; and are subjects of larceny under the same. And the taking need not be by robbery. 
      
    
    It is the right and often the duty of the presiding judge, in the examination of questions of complicated facts, to give the aid of his discrimination, experience and judgment to the jury: so he finally and distinctly submit the question to them.
    The owner of the stolen bank bills, is a competent witness, on the prosecution.
    It is sufficient to charge the oifenee in the words of the Act.
    
    In this case, the defendant was indicted for stealing sundry bank bills privily from the person. The indictment contained other counts, charging the defendant with simple larceny, for taking the same bills.
    Cornelius Tobin, the prosecutor, swore, that in June last, (1817) his pocket was picked of $2700 in bank bills. The description which he gave of them, corresponded generally, with bills which were afterwards found on the person of the defendant. The day after he lost his money, he got a warrant, and arrested the defendant, and took him before J. H. Mitchell, a Justice of the Peace. There were found on him $2000 in bank bills, and a gold watch. The bills were found on different parts of his person; some in his shirt-tail, and some in his hat, in a bundle of segars. The ^'witness declared his belief, on inspection of the bills found upon the defendant, that they were part of those he lost. The witness was a resident of Barnwell; and on his return home, after his loss, he found, that he had taken down in writing the numbers of two of his bills, which he carried to town, viz., No. 383, a twenty-dollar bill of the Union Bank, and No. 774, a bill of one hundred dollars, of the same bank. But he said he might have passed away these bills, before he lost his money. Two bills of these numbers and sums, were found on the prisoner. The witness took down the number of these, to guard against counterfeits, when he received them. He did not take down the numbers of the others. He did not recollect the numbers of any others. He had borrowed a good deal of the money he lost. The greater part of the $100 bills he lost, were cut in two : and in this particular, corresponded with those found on the prisoner. Among the bills he lost were some Georgia bills, and some North Carolina bills : and like bills were among those found upon the prisoner. Upon being questioned by the defendant’s counsel, as to his interest in the event of this prosecution, he said, “ he knew, that if, on this trial, it was made to appear that the prisoner took the money from him, which was found on the prisoner, he, the witness, would get the money: if not, he would not get it.” But he felt no other interest in the case than, he supposed, other prosecutors, similarly situated, feel. He said, he felt no person pick his pocket; there was a great crowd of persons about at the time he supposed his pocket was picked. He did not know that the defendant took his money.
    It was proved, by Mr. Mitchell, the magistrate, that the defendant was about to sail for Havana, when he was arrested. There were found upon him three receipts : one for $200, for a gold watch, dated 26th June, and one for $37, and one for $50 ; the two latter dated 25th June. Antonio L. Ilornber, who had been confined in jail with the defendant, was sworn as a witness by the State, and said, that Tobin, the ^prosecutor, had been at the jail; that the defendant, pointing to him, said, he was the person from whom he stole the money; but he thought the prisoner in fun, because he directly burst out into a laugh. He said, the prisoner lent him $45. He knew the prisoner in Havana. He had not engaged his passage at the time he was arrested, to go there. He was looking out only for a vessel. The prisoner said to him, he was going to Havana, to purchase tobacco. The prisoner gave no account of the means by which he acquired the money, which was found upon him.
    The counsel for the defendant alleged, as a fact, which was, he said, notorious, that there are several bills of the same number and denomination usually issued, and from among those found on the prisoner, he discovered, and exhibited to the Oonrt and jury, two of the same numbers and'denominations.
    The bills were described in the indictment, as “ twenty promissory notes for the payment of money, to wit., each, for the payment of the sum of five dollars, commonly called bank bills of the Bank of South Carolina, each of the value of five dollars,” &c., &c.
    The case was tried before Mr. Justice Gkimke, at Charleston, in the Spring Term, of 1818, and the defendant was convicted of petit larceny. The defendant now moved for a new trial, and in arrest of judgment, on thefollowing grounds, viz.:
    1. Because bank bills are not included in the words of the Act of 1836-7, (P. L. 146, No. 650. 2 Brev. Dig. 196,) under which the defendant was indicted ; and because the taking must be by robbery, which was not proved in this case.
    2. Because the presiding Judge charged the jury, that words, which were the mere idle assertions of the defendant, to a fellow prisoner, at which both laughed, were a legal confession.
    3. Because there was no proof, that the money found on the defendant had ever belonged to the prosecutor, *and because the defendant proved most fully how he came by the money in his possession.
    4. Because the Judge misstated the testimony to the jury, by saying the defendant had not proved that more than one bill, of the same tenor and date, were usually issued by the same bank, when the fact appeared by the bills in evidence, and was admitted by the Attorney-General.
    5. Because 7'obin, the prosecutor, was an interested witness, and therefore, an inadmissible witness ; and,
    6. Because the bills are not so described, in the indictment, as to come within any description in the Act of Assembly, A. A. 1736-7, (P. L. 147, 2 Brev. Dig. 196,) Tit. Bobbery, making choses in action the subjects of larceny.
    
      
       3 Stat. 470, § 3.
    
    
      
       See ante 9, State v. Tillery. R.
      
        State v. Smart, 4 Rich. 356.
    
   The opinion of the Court was delivered by

Cheves, J.

Choses in action, except to the value of the paper and wax, were not, at the common law, subjects of larceny. The Act of Assembly of 1736-7, makes those mentioned therein, the subject of larceny, in the same manner as goods and chattels. Among those enumerated in that Act, are promissory notes; and it is contended by the Attorney-General, that the bank bills which were the subject of this larceny, are embraced by this denomination of choses in action.

The counsel for the defendant admit, that a bank bill may be a promissory note in some senses; but, that its proper name is a bank bill, and that as such, it is not included under the term promissory note.

It is said, that the Act of Assembly was passed at a time when we had no banks in this country, and that, therefore, it could not have intended to embrace their bills.

That the act was copied from 2 Geo. 2, c. 25, see. 3, as far as the provisions of that act were applicable to this State, at the time our act was passed, and that because inapplicable, bank bills, as well as many other denominations of choses in action, were omitted in *that act, which renders it obvious, (it is argued,) that it was not the intention of the Legislature to embrace any of the specific denominations omitted.

That the Legislature have tacitly acknowledged this, by legislating on an analogous subject; viz., forgery.

That on the establishment of banks in the State, it was deemed necessary to pass an act to punish the forgery and counterfeiting of them, A. A. 1801, (1 Brev. Dig. 369.)

That this is a criminal law, and is to be construed strictly.

It is true, that laws, defining crimes and inflicting punishments, are to be construed strictly. There are no crimes against the State, but those which are previously declared to be so, either by the statute or common law, and it must be manifest that the law prohibits the act. But it. is only necessary it should be manifest. There are some antiquated decisions on this subject, which are a violation of common sense, and which can afford no example for future cases.

. The question then is, whether it is clear and manifest, beyond a reason- ■ able doubt, that bank bills are included under the term promissory notes, and were intended by the Legislature to be so included. ’ I think they are included. They are writen in the form of a promissory note. They contain all the legal requisites of a promissory note, either at common law, or under the statute of 3 & 4 Ann. That statute expressly recognizes promissory notes, signed by, (such is the language of the statute) or by authority of corporate bodies. If an action were to be brought against the bank issuing one of these bills, for the recovery of the amount of it, it would be declared upon as a promissory note. If it were not declared upon and considered as a promissory note in an action upon it, it would be necessary, perhaps, to prove the consideration which the bank received for it. It is, in every point of view, usual and necessary to consider it as a promissory note. A bank bill is, then, a promissory note, and of course, included within the term *promissory note in the Act of Assembly, unless, for some other reason, it be excluded. But although it be included, if it do not appear that the Legislature intended to include it, it will not be within the act. It is fair, however, and necessary, to take the just meaning of the terms used, as evidence of the intention of the Legislature; if there be no circumstance forbidding it. The circumstances which are supposed to forbid it, are, that bank bills could not have been in the contemplation of the Legislature, as there were none then in circulation and because bank bills were omitted in this act, although they were expressed in the statute from which the act was copied. But laws of this nature are not enacted for the circumstances of the particular day when they are ratified. They are a kind of perpetual beings, which receive a new and fresh origin every day. They embrace all cases and circumstances within their phraseology, at all times when they are unrepealed. If there are any exceptions to this rule, they must be shown.

In relation to the instrument, called a bank bill, there is no just discrimination between it in a civil and criminal point of view. As it is a promissory note under the statute 3 & 4 Ann, though we had no banks when that statute was adopted, so it ought to be under the Act of Assembly of 1736-7, making ehoses in action subjects of larceny. Nor is the omission of the term bank bill, in the act, admitting it to have been copied (which is probable) from the statute 2 Geo. 2, c. 25, a reason why such a bill should not be included under the term promissory notes. The phraseology of that statute did not apply to the circumstances of this State, when the Act of Assembly was passed. To embrace the object of that statute, a precise enumeration was unfit, and therefore general terms were used, which would embrace all the particular denominations of dioses in action, mentioned in the statute. This course was suited to a State, whose habits, agricultural and commercial, were not yet formed, in order, by the generality of the terms, to *meet and embrace its varying habits. In this respect it pursued the precedent of the British statute, which, after expressing particulars, goes on to use general woz’ds, to embrace all other denominations, which were not expressed; and it is this part only, of the statute which we have copied, viz. : “ Or other bonds or warrants, bills or promissory notes, for the payment of any money, &c.” (Stat. 2 Geo. 2, c. '25, sec. 3.) .

If the last noticed argument of defendant’s counsel were to prevail, then the larceny of bills of exchange, under the Act of 1736-7, would not be punishable ; for they are expressly enumerated in the statute of 2 Geo. 2, c. 25, and are omitted in the Act of Assembly, unless included under the general words. The argument proves too much. So the argument drawn from the Acts of Assembly, relative to forgez-y, though ingenious, would lead us to such embarrassing consequences, that we would adopt it, if obliged, with fear and trembling. What would become of our laws, if they were to be virtually annulled in all cases where the Legislature have, in analogous instances, passed unnecessary laws ? The pruriency of legislation would leave us almost without law. In the Act of Assembly, to which this ai’gument refers, is unnecessarily enumerated the substance of all previous acts and statutes concerning the forgery of paper instruments. According, then, to fair rules of construction, instruments of the nature of bank bills, were in the legal contemplation of the Legislature, when the Act of Assembly of 1836 was enacted. But the question is not open. It has been decided by a full bench at Columbia, one Judge only (Mr. Justice Nott) doubting. The name of the ease I cannot ascertain. There is another point, under this first ground, viz., that the taking must be by robbery. But that is only part of the offence created by the Act. The words are, “steal or take by robbery.” Stealing is one offence, and robbery another. This indictment is for stealing. There can be no doubt on the point.

2. The presiding Judge has reported, that he did not charge the jury, that these woi'ds wez’e a binding *confession; but submitted the question to them, whether they were meant by the defendant, as a confession ; and this was very correct. But if the Judge, differing from the counsel for the defendant, considered the words as an acknowledgment on the part of the prisoner, it is contended, that, in collating the testimony, he ought to have suppressed his opinion on the matter. It is /the right, and often the duty of the presiding Judge, in the examination of questions of complicated facts, to give the aid of his discrimination, experience, and judgment, to the jury. If he finally and distinctly submits the question of fact to the jury, as a matter within their peculiar province, and on which they have a right to determine for themselves, there can be no cause for this Court to interfere. There may be extreme cases, which I hope will never exist, where a Judge, becoming insensible to the duties of his high station, may forget that impartiality which he is sworn to practice; a quality which graces, while it strengthens the authority of the bench. If, forgetting the duty of impartiality, a Judge become a partisan, this Court must interfere; but it must not be on every light occasion. In this case, the Court can see no impropriety in the remarks of the presiding Judge to the jury.

3. On this point, as. well as on all other points of fact in the ease, the Courtis, satisfied with the verdict of the jury. The circumstances are very strong, and so well connected, as to leave no doubt of the guilt of the defendant.

4. The general remarks which have been made on the second ground of the motion, will apply to this. It maybe added, that the alleged misstatement of the Court must have been harmless, as the facts relied upon by the counsel for the defendant exposed the error. But the presiding Judge reports, that there was no testimony before the Court, on the point; and that he did no more than say to the jury, the Attorney-General denies that he made any admission on the point.

5. The prosecutor was clearly admissible, notwithstanding *the conviction of the prisoner would entitle him to the restitution of his property. It is a general rule, that in criminal prosecutions, the injured party may be a witness. It is the constant practice in our Courts, on an indictment for larceny, to admit the owner of the goods to be a witness ; and it is no objection, that he will be entitled to the restitution of his property, on-the conviction of the offender. This is so well known, and has been so long the established and unquestioned practice, that we are necessarily surprised to see the objection now made. Phillips, 86, 87. Commonwealth v. Moulton, (9 Mass. Rep. 30.)

6. The last ground of the motion is, that the bills are not sufficiently described in the indictment. The indictment is in pursuance of the safest of all rules on this subject; is in the words of the act, and there are superadded words calculated to complete all the objects of the law, in stating the offence.' The facts of the charge should be set forth, it is said, on the record, that the defendant may clearly understand- the charge he is called upon to answer, that the Court may know what judgment to pronounce upon conviction, and that posterity may know what law is to be derived from the record; (1 Cbitty’s Crim. Law, 231.) The indictment also is supported by the precedents and authorities in point; (3 Chitty, 967, 968.) On all the grounds, I am of opinion the motion ought to be refused.

Colcock and Johnson, JJ., concurred.

Gantt, J.,

dissented.

The prisoner, Casados, has been convicted under an Act of Assembly, passed in 1736, on a charge of stealing certain bank notes. The fact of his having taken the notes, was satisfactorily proved on the trial of the case ; but whether that taking constituted felony within the purview and meaning of the above recited act, has been made a question. The words of the act are, “ if any person or persons shall steal or take by robbery any bond, warrant, bill or promissory note for the payment, or securing the payment of any money, *being the property of any other person or pérsons, or of any corporation, it shall be deemed felony,” &c. When the Act passed, there were no banking institutions in the country, and I think it fair to presume that the taking of that description of paper, was a mischief which never entered into the contemplation of the Legislature who passed the act. It was intended to embrace only those dioses in action afloat in the country ; and it may be presumed, from the wording of the clause,. (bill or promissory note being made to associate together,) that bills of exchange were intended. The law having' distinguished each of those dioses in action in a particular manner, and attached to each, qualifications not incident to other evidences'of debt. In the construction of penal statutes, I need not observe, that the law is guarded and circumspect, and does not allow that a liberal construction shall be given to it. But admit that it were otherwise : would it not be a strained and forced construction to say, that bank bills or notes were intended to be embraced by this act ? Bills ex vi termini do not necessarily include bank bills, and the usage and general understanding of mankind is opposed to such admission.

If, in a contract between A. and B., the former should agree to pay a certain sum in bills or promissory notes, would any person suppose that bank bills were intended f I think not; and there is much less reason to believe that under the term promissory notes, bank bills or notes were intended to be included. There is an obvious and marked discrimination, in common intendment, between promissory and bank notes. The latter have never been distinguished as promissory notes. In fact, bank paper, even at this day, is always designated by prefixing the word “ bank," and is as often called bank bills, as bank notes, so that it is yet uncertain which is the appropriate term to designate them by. That the Legislature have subsequently to the establishment of banks, provided a punishment for forging bank notes, when a similar law had been passed before in respect to promissory notes, is Conclusive as to the construction which that body have put upon these words, and evince a conviction on the mind of the Legislature, that there was a discrimination between them. When we contemplate, too, the nature of a corporation, and reflect that it is an invisible body, incapable of issuing a note of this kind for the payment of money without a power specifically given authorising the same, and then reflect, that the several notes mentioned in the indictment, were issued at a late period, and long subsequent to the passage of the act, it will necessarily follow, that they cannot, consistently, be identified with a species of paper of known and established signification, and which never did require legislative sanction to entitle the same to currency in the world. A bank note is rather evidence of money deposited in bank, than a promise by the President and Directors of the bank to pay money ; and as the President and Directors are not individually responsible, out of their private funds, for the payment of the note, this characteristic difference between bank paper and promissory notes, is conclusive to show that they are of different natures, and cannot be embraced by the same term. It is said that judicial determination has sanctioned the construction given by the Attorney-General ; but in the construction of laws, so highly penal as the present, it belongs to existing Judges to think for themselves. This question admits at any rate of great doubt. The opinion of an eminent and excellent Judge, whose memory will ever be revered for the talents and virtues which he evidenced in life, Mr. Trezevant, was decidedly against the construction which has been given ; and my brother Nott, I am told, is of the same opinion. It is to be hoped, that the Legislature will, at an early period, provide for the punishment of this offence, in a way which will leave no doubt on the mind of the Judge, that in the discharge of the most awful and solemn duty which can devolve upon him, he has a sufficient warrant for the sentence which he pronounces. One which in my opinion does not at present exist, *although, with deference be it spoken, the sanction of the bench goes along with it.

Hunt, for the motion. Mchardson, Attorney-General, contra. 
      
       3Stat. 470.
     
      
       5 Stat. 397.
     
      
       2 Stat. 544.
     
      
       2 McM. 428 ; 8 Rich. 140; 7 Rich. 471.
     
      
       3 McC. 533.
     