author: By the Court, Emott, J.

text:
    Supreme Court. Kings General Term,
    December, 1862.

      JSmott, Lott and Brown, Justices.
    James McCloskey, plaintiff in error, v. The People, defendants in error.
    The mere snatching of a thing from the hand or person of another, without any struggle or resistance by the owner, or any force or violence on the part of the thief, will not constitute robbery.
    Where the court instructed the jury th&t feloniously taking another’s property with violence sufficient to constitute an assault and. battery would make out the crime of robbery, it was held to be erroneous, and, the prisoner having been convicted under such a charge, the judgment was reversed.
    Where the -property is not obtained by putting the person in fear of immediate injury to the person, the violence necessary to make the offense amount to robbery must be sufficient to force the person to part with his property, not only against his will, but in spite of his resistance.
    The prisoner was indicted for a robbery, charged to have been committed on Halsey F. Wing, in taking violently from his person four pieces of silver coin of the value of one dollar, and one hat of the value of four dollars.
    -The prisoner pleaded not guilty, and was tried at a Court of Sessions held in the county of Kings, in March, 1862, before the" County Judge and the Justices of the Sessions.

      Halsey F. Wing, called by the district attorney, testified as fol- • lows: I never knew defendant before the evening in question; he came into White’s drinking saloon; think it was about 11 o’clock P. M.; he came in with a young man and had a drink; he then asked if I couldn’t treat; I said I supposed so; took a drink with them; I paid for it; started to go; he said I must go with him; took hold of my arm and pulled me out; said he was going down Eyerson street; pulled me with him; asked how much money I had; said not much; he said let me see it; I pulled out some change from my pocket, and held it close in my hand; he said I had more money than that; jumped around in front of me, had one arm around'my neck, put his hand in my pocket, pulled out half dollar and a smaller coin and knife; said I could have knife, and handed it back to me; he called me Belknap; said he would be easy, with me if I’d give him some money; I asked if he wanted to rob me; I ran up on the stoop and rang the bell; he came up ; I got hold of his hands and held him, and kicked against the door; I pushed him off the stoop ; he came up again.; I pushed him off again; he got .up, took my hat'and ran away; went to station house, got an officer and had him arrested; he came out of a liquor store in Myrtle avenue, not quite a block from where the difficulty took place.
    During the cross-examination of the witness he stated:
    The defendant had been drinking that- night; didn’t consider him intoxicated ; I consider a man intoxicated when he staggers from one side of the sidewalk to the other, not otherwise; he put his hand in my right side pocket; he stood in front of me at the time; had hold of me with the other hand around my neck or shoulders; stood so probably fifteen seconds, or perhaps not so long; we walked along together; before that he had hold of my arm; he' took a fifty cent piece and another coin ; don’t know what it was; smaller than fifty cents; he gave me the knife back; witness had some small coin in the right hand holding; don’t know what was ■ done with the other; rememember I broke loose and ran away from him; I tried to get loose from him whilst he had his hand in my pocket; tried to shove him away with my left hand, I think; am not positive; I shoved with my left or right .hand; am not. positive I shoved him with the other hand; I stepped back from him, or tried to; he, defendant, took the change out of his, witness’, right pocket; knew a fifty cent piece and some other change remained; don’t know how much I had in my hand; left fifty cent and coin in my pocket; didn’t want him to know how much; didn’t try to prevent his putting his hand in my pocket; it was there before I knew he intended to do it; I knew when he drew his hand out; he put it in and took it out in an instant; don’t remember I said anything at the moment he put hand in or out; I turned round and tried to get in the house; don’t know that I stepped in front of him.

      Q. What were you doing with your right hand while the defendant had his arm over your shoulder and his hand in your pocket? A. I had some small change in my right hand, holding it. Q. What were you doing with your left hand during this time ? A. I don’t know. Q. What did he say to you while he had his hand in your pocket ? A. Nothing. Q. What did you say to him? A. Nothing. I tried to shove him away with my left hand, I think, I am not positive; I cannot say that I did anything; he took his arm from my shoulder when he took his hand out of my pocket; I am not positive I shoved him with either hand; I stepped back from him, or tried to. Q. Did you do anything to prevent him from putting his hand in your pocket ? A. I did not. Q. Did you do anything to prevent him from taking the money out of your pocket ? A. No. Q. Did he make any threats? A. No. Q. Were you frightened at the time-he took the money ? A. No; I did not know but that he was playing or joking with me when he put Iris hand in my pocket. Q. Then it did not occur to you at the time that he was robbing you ? A. No. Q. When did that first occur to you ? A. After he took the money and asked me if I hadn’t more; he-did not injure me in any way; he talked friendly and good naturedly the little way we came together.- I walked along with him of my own accord when he pulled me out of the door; I took it to be good natured.

      Re-direct: I had bills about me; I paid for the drinks I took with him in change; he shoved my vest up; had bills in my fob pocket; this was after he took the money out of my pocket.
    After other witnesses had been examined, the testimony. was closed, and the defendant’s counsel requested the court to charge the jury the following propositions, to wit:
    1st That the evidence does not show that such violence was used as to constitute the offense of robbery.
    2d. That the facts, as stated by the complaining witness, do' not constitute such violence as to bring the case within the definition of robbery in the first degree.
    3d. That the violence contemplated by the statute means .actual violence, and the laying of the arm over the shoulder, as testified to by the witness, does not constitute such actual violence.
    4th. That there is no evidence whatever in the case to constitute the charge of robbery.
    5th. That the degree of violence that would constitute an assault and battery, would not necessarily be such violence as to constitute robbery by violence.
    6th. That the sudden snatching of the money from the complainant, in the manner described by the witness, as testified to, does not amount to robbery.
    7th. That there is no evidence to go to the jury upon the question of robbery.
    8th. That there is no evidence to show that the taking was against the'will of the complainant.
    The court refused to charge each and all of said propositions separately, and the prisoner’s counsel excepted separately to each of said refusals.
    The court charged the jury, among other things, as follows: That if the jury believed the testimony of the witness, that the prisoner thrust his arm around his neck and thrust his hand in Ms pocket, and took therefrom the coin or money in the manner testified to, with felonious intent, then he is guilty as charged. To which charge prisoner’s counsel excepted.
    The court also charged the jury that the same degree of violence that would constitute an assault and battery in any case, would be sufficient violence to constitute a robbery by violence to the person. To which charge prisoner’s counsel also excepted.
    The court also charged the jury, that if they found that defendant committed an assault and battery, with intent to rob, he could be so convicted under the indictment. To which' .charge the prisoner's counsel excepted.
    The court also charged the jury, that feloniously taking the personal property of another, from his person, by putting him in fear of some immediate injury to his person, is robbery, and that if the expression of prisoner, as testified to by witness, “ Give me your money and I’ll be easy with you,” conveyed to his mind fear of some immediate injury to his person, and the prisoner at the same time feloniously attempting to take the money or bills from complainant’s person, but did not succeed, that would be an attempt to rob, and he could so be convicted under the indictment. To which charge prisoner’s counsel then and there duly excepted.
    Prisoner’s counsel then requested the court to charge the jury, that there was no evidence of fear, which the court refused to do, and the prisoner’s counsel excepted.
    The jury rendered a verdict of guilty, and the prisoner was sentenced to imprisonment in the State prison for the term of ten years.
    The record was then removed into this court by writ of error.

      S. D. Morris, for the defendant.
    I. The court erred in refusing to charge the- 1st, 2d and 3d propositions, as to the degree of violence necessary to constitute robbery by violence to the person.
    In order to constitute robbery in the first degree, the folio-wing facts must appear: 1st. That certain property was taken; 2d. That it was. taken with a felonious intent; 3d. From the person or in the presence of the owner; 4th. Against his will; 5th. That they were taken either by violence to the person, or by putting the owner in fear. The 1st and 3d ingredients of this offense are not denied; the 4th and 5th are expressly disproved by Wing himself; and the 2d by fair implication.
    II. The gist of the offense of robbery is the force and terror. (1 Hale P. C., 532 ; 2 East P. C, 707; 1 Russ., 869; R. v. Norris, 2 Car. & P., 349; Roscoe Cr. Ev., 893.)
    Ho taking by violence will, at the present day, be considered as sufficient to constitute robbery, unless some injury be done to the person (Lapier’s Case, 2 East P. C., 557), or unless there be some previous struggle for the possession of the property, or some force used to obtain it. (1 Russ., 871; Lapier’s Case, supra Roscoe; Cr. Ev., 894, 898; Moore's Case, 1 Leach, 335; Mason’s Case, Russ. & Ry., 419; Roscoe Cr. Ev., 419, 899; 2 Archb. Cr. Pr. and Pl.)

    The violence must precede the taking. (Barb. Cr. Law, 144.
    ITT. The court erred in refusing to charge the jury, “that the degree of violence that would constitute an assault and battery would not necessarily be such violence as to constitute robbery by violence.”
    1. Any injury whatsoever, be it ever so small, to the person in an angry, or revengeful, or rude, or insolent manner, as by spitting in the face, or throwing water on the person, is a battery. (Roscoe Cr. Ev., 288.)
    2. The snatching of a bundle from under the arm in a rude manner, is an assault and battery; but if done with a felonious intent it is not robbery. (Macauley’s Case, 1 Leach, 287; Roscoe Cr. Ev., 898.)
    IY. The court erred in refusing to charge the jury, “that the sudden snatching of the money from the complainant in the manner described by witness, does not amount to a robbery.” (Roscoe Cr. Ev., 893; Macauley's Case, 1 Leach, 290.)
    Y. The court erred in charging the jury, “ that if they believed the testimony of the witness that the prisoner thrust his arm around his neck, and thrust his hand in his pocket, and took therefrom the coin or money in the manner testified to with the felonious intent, then he is guilty as charged.”
    1. This charge took from the jury the right to say whether the money was taken by Wing’s assent or not.
    2. It was equivalent to a direction to the jury to convict.
    VI. The court erred in charging the jury, “ that the same
    degree of violence that would constitute an assault and battery in any case would be sufficient violence to constitute robbery by violence to the person.”
    1. The sudden snatching of a bundle out of the hand would be an assault and battery, yet it was holden not to be robbery. (Macauley's Case, supra.)

    2. “ An umbrella was snatched suddenly out of the hand of a woman, as she was walking along the street.” The act was clearly an assault and battery, but no robbery. (1 Russ, on Cr., 874, Am. note C.)

    3. “ The mere act of taking being forcible, will not make this offense highway robbery; to constitute the crime of highway robbery the force used must be of such a nature as to show that it was intended to overpower the party robbed, and prevent his resisting, and not merely to get possession of the property stolen;, thus, if a man walking.after a woman in the street, were, by violence, to pull her shawl from her shoulders, though he might use considerable violence, it would not, in my opinion, be highway robbery, because the violence was not for the purpose of overpowering the party robbed, but only to get possession of the property.” (1 Russ., 871, note C.)

      John Winslow (District Attorney), for the People.
    I. All the propositions involving questions of fact were properly left to the jury by the court. And all requests of counsel for defendant to take such questions from the jury were rightly refused.
    The first, third, sixth, seventh and eighth propositions, which the defendant’s counsel requested'the court to charge, involved questions of fact, which should be left to the consideration of the jury.
    II. The proposition charged by the court,- “ that if the jury believed the testimony of the witness, that the prisoner thrust his arm,” &c., &c., “ in the manner testified to, with the felonious intent, then he is guilty as charged," was, in effect, only saying to the jury that if they believed the testimony of the complaining witness, the case for the People was made out, and the defendant must be convicted.
    III. The next proposition charged by the court, as to the degree of violence necessary, with the other elements that make up the offense, is correct.
    The court on this point only said, in effect, that if all the other conditions required by the statute to constitute robbery, such as taking the property against the will, &c., are proved, then the violence that would make assault and battery would t>e sufficient in the case at bar.
    IV. The next proposition charged, as to fear, is of no importance here, inasmuch as the jury found the principal offense.
    V. The facte testified to by the complaining witness, Mr. Wing, clearly establish the offense charged in the indictment, and were properly submitted to the jury.
   By the Court, Emott, J.

The Revised Statutes define robbery in the first degree to consist in feloniously taking personal property of another from his person or in his-presence' against his will, by violence to his person, or by putting such person in fear of immediate injury to his person. (2 B.

S., 677, § 55.) The common law definition of robbery was the same. (4 Bl. Com., 243; 1 Hale Pl, vol. 1, ch. 46; 2 East Cr. Law, ch. 16, § 124, seq.) The mere snatching anything from the hand or the person of any one, without, any struggle or resistance by the owner, or any force or violence on the part of the thief, will not constitute robbery.

In Gascoigne's Case (Leach, 313; East Cr. Law, vol. 2, p. 709), the prisoner snatched some money out of the. pocket of a woman whom he was conveying to prison on a criminal charge. The prisoner was not a constable, but' attended the police office as a runner. He was convicted of robbery, and the conviction was sustained on the ground, which was. proved, that he had violently forced the woman into a coach and handcuffed her, with the felonious intent of getting her money, and the direction to the jury at the trial put the case upon this exclusively. The cases which are often cited of taking an ear ring, which was held to be a robbery when it was taken with such violence as to lacerate the ear of the wearer, or a diamond hair ornament tearing out with it a part of a lady’s hair from her head, are illustrations of the rule as to the degree of violence necessary to constitute the offense of robbery. (Leach, 238.)

The court below, in the present case, instructed the jury in effect that feloniously taking another’s property with violence sufficient to constitute an assault and battery, would make out the crime of robbery; and again, that if they believed the story of the principal witness, the offense was made out.

In these instructions the judge was in error. In the cases to which I have referred, as well as in many others to be found in the books, the snatching the property was sufficient to constitute an assault and battery, yet that alone" did not make the felonious taking more than a larceny. The property must be taken by violence to the person, which means more than a simple assault and battery. The violence must be sufficient to force the person to part with his property, not only against his will, but in spite of his resistance. The rule of law laid down by the court below went farther than the authorities justify, and the application of the rule to the facts was also incorrect. •

The proof showed that the prisoner took the money which he stole out-of the prosecutor’s pocket, while they were walking together in a friendly manner.

Ho more force was used than sufficient to pull the money out of the pocket of the witness.

Both the men had been drinking, and the prosecutor, at the time of the act, evidently considered and treated the prisoner’s conduct as a joke. He made no resistance, and yielded neither to force or fear. If he was led to entertain the idea that the prisoner intended to rob him, or to any fear or apprehension of violence or injury from him, it was not, as he himself states, until after this offense was committed.

Under these circumstances, the violence to the person in taking the property, which is the essential element of robbery, was wanting, and the prisoner’s offense was simply a larceny.

The judgment of the Court of Sessions must be reversed and a new trial ordered.


source: Caselaw Access Project

license: Public Domain

text:
    Supreme Court. Kings General Term,
    December, 1862.
    Mnott, Lott and Brown, Justices.
    James McCloskey, plaintiff in error, v. The People, defendants in error.
    It is a good ground of challenge to the array, that certain of the jurors had not been summoned by any legal authority, and that their names had been put upon the list of jurors by the clerk of the court, at their request, without any order having been entered requiring such jurors to serve; and when such a challenge, interposed in behalf of a prisoner on trial for felony, was overruled by the court, .on error, the judgment was reversed.
    The prisoner was tried in the Court of Sessions of Kings county, in May, 1862, on an indictment which charged him with having committed a rape on the body of Mary Anderson, a plea of “ not guilty ” having been interposed to the indictment.
    Before the commencement of the trial, the prisoner, by his counsel, challenged the array of jurors called to try said issue, upon the following grounds, to wit: That Willard William Day, and other jurors whose names appeared upon the list of jurors, had not been summoned as jurors to serve in the Court of Sessions, but that their names were put upon the list of jurors by the clerk of the court, at the request of the jurors themselves, without having been summoned to appear for said term by the commissioner of jurors, and without any order of the court being entered requiring such jurors to serve, which challenge defendant, by his counsel, offered to verify by proof.
    Whereupon the district attorney suggested that if any juror had been added, that was no ground of challenge to the array, but of personal challenges to such jurors being sworn. The court so ruled, and the defendant’s counsel excepted.
    The trial then proceeded, and resulted in the conviction of the prisoner, who was sentenced to imprisonment in the State prison for ten years.
    The record was then removed into this court by writ of error.

      S. D. Morris, for the plaintiff in error.

      John Winslow (District Attorney), for the People.
   By the Court, Emott, J.

The prisoner, by his counsel, before the commencement of the trial, interposed a challenge to the array of jurors, on the ground that certain of the jurors had not been summoned by any legal authority ; that their names had been put upon the list of jurors by the clerk of the court, at the request of those persons themselves, without their having been summoned as jurors, and without any order of the court being entered, requiring such jurors to serve; and offered to verify the challenge by proof The district attorney admitted the truth of the challenge, but demurred to it in point of law, insisting that the facts stated were no ground of challenge to the array, but of a challenge to the polls in the case of any or each of such jurors, if he should be drawn upon the jury to try the prisoner.

The court sustained the district attorney, and overruled the challenge, and the prisoner’s counsel excepted.

The statute (2 JR. S., 733, § 3) requires that twenty-four jurors duly drawn and summoned should appear, not impanneled in any other cause, or otherwise disqualified, and that the ballots containing their names should be placed in the" box from which the jury is to be drawn, before commencing the trial of any indictment.

It is not denied that the jurors specified in this challenge were not duly summoned, and were not competent jurors.

A defect in summoning a jury has always been ground of a challenge to the array, as where the array was returned by two coroners only, when there were four in-office, or by a bailiff and not the sheriff. (Trials per Pais., I, 168.) So it was a good challenge to the array that the sheriff put a juror into the panel at the request or selection of a party, or out of favor to him. (Id., 169.) The same authority, at page 189, says, that the objection that a juror had been impanneled, or summoned-, at the request of a party, being a good challenge to the array, cannot be made a challenge to the jurors. The present objection is clearly to be taken against the array, and if not interposed in that form could not be cause of challenge against individual jurors. It does not appear but that these jurors were competent in point of property and the other requirements of the law, and a challenge “propter defectum ” would not be against any single juror because he had not -been duly summoned, if his name were found upon the panel returned to the court. It might be evidence to sustain a challenge to the polls, of the description called by the old writers “propter affectum,” that the juror was selected or summoned at the request of a party; but even this challenge would only go to favor, and might be overruled upon trial.

A defect, ora violation of the statute, in the manner in which -the jury list is made up, must be taken advantage of by a challenge to the array, and not to the person of the juror.

Such a defect as was here alleged, that certain of the jurors were not summoned by any authority whatever, but were put upon the list by the clerk of the court at their own request, is a good ground of principal challenge to the array. The result to a prisoner of refusing such a challenge would be, that he would be compelled to go to trial with a jury improperly-summoned, without the legal guaranties of impartiality and competence. To protect himself against jurors thus obtained, he would be driven either to exhaust the privilege of peremptory challenges which the law gives him, or to risk his rights upon a challenge to the favor in the case of each juror, upon which, what would be good cause of principal challenge to the array, would be merely evidence, and that not the most direct, of favor or partiality in the juror.

In the case of The People v. McKay (18 Johns. R., 212), the court held that the want of a venire appearing upon the record would be sufficient to' arrest the judgment. Probably the present objection, if it appeared on the record, would have the same effect; but having been brought to the notice of the court below by the prisoner’s challenge, it should have been sustained by them, and it was a fatal error to overrule it.

The judgment must be reversed.


author: By the Court, Ingraham, P. J.

text:
    Supreme Court. New York General Term,
    September, 1862.
    Ingraham, Barnard and ClerTce, Justices.
    The People v. Jacob Fauerback.
    To authorize a conviction under the act passed April 23, 1862, entitled “An act to prevent the adulteration of milk and to prevent the traffic in impure and unwholesome milk,” it is necessary to aver in the complaint or indictment, and to prove on the trial, that milk was adulterated' with the view of offering it for sale or exchange. A charge that the defendant had adulterated milk^ without stating the object of such adulteration, is insufficient.
    Whether mixing water with milk is an adulteration within the meaning of the statute—Queret

    The defendant had been tried and convicted, before a Court of Special Sessions in the city of New York, of an offense under the statute (ch. 467 of the Laws of 1862).
    The conviction was brought before this court for review, and the facts are sufficiently stated in the opinion of the court.
   By the Court, Ingraham, P. J.

The defendant was arrested, tried and convicted before the Court of Special Sessions, under the act to prevent the adulteration of milk, &c., passed April 23, 1862.

The charge against the defendant is, that “ at the time of his arrest he was adulterating the milk with water which he had in one of the cans in his wagon.” The return is, that “the charges of the complaint were sustained by evidence, according to the tenor of said complaintthat “ the prisoner’s counsel objected to any evidence of weakening milk by water, on the ground that the statute did not include such an act.” The prisoner was fined $50.

It admits of some. doubt whether mixing water with milk was intended by the terms, “to adulterate milk.” The evident intent of- the statute was, as stated in the title of the act, to prevent the traffic in impure and unwholesome milk, Whether the addition of water to milk, without any other ingredient, renders it impure or unwholesome, is certainly not so clearly settled as to enable a court so to find without some evidence to establish that fact. At any rate, there should be evidence furnished to the court, to statisfy them that the additions were of such a character as would adulterate the milk, or render it impure or unwholesome.

It is not for the court to say that such an effect would be produced by adding water,'without any evidence on this point.' If the legislature had so intended, they would have made the offense to consist of any mixture whatever being made with the milk. Whether the effect of such a mixture is to adulterate the original article, is a question of fact to be decided upon evidence, and not to be held as a matter of law.

In the present case, however, the return does not show any State of facts to warrant a conviction for any offense. All the .evidence in the case that is submitted to us is, that the pris-, oner was adulterating milk with water which he had in a can ' in his wagon. What quantity of milk he had,- for what purpose it was to be used, or what the employment of the prisoner was, does not appear. ' I do not understand that the law prevents any one from mixing milk and water together, unless it is done with the intent of offering it for sale or exchange. This is just as necessary to be proven in order to make out the offense, as it is to prove the adulteration. Such intent may be inferred from the quantity of milk, the mode of carrying it, the employment of the prisoner or his declarations, but surely the court should require some evidence, both of adulte-' ration and of the purpose of the prisoner as to the sale of the adulterated article, before a man should be convicted of an offense for which he might be sentenced to fine and imprisonment without limit.

We think the evidence did. not warrant the conviction, and the charge in the complaint was not a charge of the offense stated in the statute, without an allegation that the prisoner intended to offer the article for sale after the adulteration.

The judgment should be reversed.


author: By the Court, Clerke, J.

text:
    Supreme Court. New York General Term,
    May, 1862.
    Ingraham, Leonard and Gierke, Justices.
    Tomlinson and Smith, plaintiffs in error, v. The People, defendants in error.
    On the trial of an indictment for having in possession a counterfeit bank note, with the intention of passing it, it is no defense that the bank note is not set forth in the indictment, and that no reason for omitting to set it forth is assigned in the indictment.
    When a request to charge contains two propositions, one of which is right and the other wrong, it is not error in the court to refuse to charge as requested.
    This case came before the court on writ of error. By the return, it appeared that an indictment in the following form" was found in the Few York General Sessions, against the plaintiffs in error:

      “ City and County of New York, ss:

    The jurors of the People of the State of Mew York, in and" for the body of the city and county of Mew York, upon their oath,- present:
    That William Smith, late of the first ward of the city of Mew York, in the county of Mew York, aforesaid, and John Tomlinson, late of the same place, on the thirteenth day of August, in the year of our Lord one thousand eight hundred and sixty-one, with force and arms at the ward, city and county aforesaid, feloniously had in their possession a certain forged and counterfeited negotiable promissory note, for the payment of money, to wit, the sum of five dollars, commonly called a bank note, purporting to have been issued by a certain corporation or company, called the Judson Bank, duly authorized for that purpose by the laws of the State of Mew York, a further déscription of which said last mentioned forged and counterfeited negotiable promissory note, for the payment of money, is to the jurors aforesaid unknown, with intention to utter and pass the same as true, and to.permit, cause and procure the same to be so uttered and passed, with the intent to injure and defraud one Charles Meyer, and divers other persons to the jurors aforesaid unknown, he, the said William Smith and John Tomlinson, then and there well knowing the said last mentioned forged and counterfeited promissory note, for the payment of money, to be forged and counterfeited as aforesaid, against the form of the statute in such case made and provided, and against the peace of the People' of the State of Mew York and their dignity. • ■
    NELSON J. WATERBURY, District Attorney.

    On the 11th day of September, 1861, the prisoners were arraigned in court and pleaded not guilty.
    The issue so joined came on to be tried on the 24th day of, September, 1861, before John H. McCunn, city judge, and a jury. The prosecution called as a witness,

      Charles Meyer, who, being duly sworn, testified as follows: On the 13th August, 1861, prisoners William Smith and John Tomlinson came into my store and asked for drinks; I gave them drinks, when Smith gave me a five dollar bill in payment and to change for drinks; I was suspicious of said bill, and went out and had it examined by a police 'officer; I then went back to the store and returned said bill to said Smith; it was a five dollar bill on the Judson Bank, Ogdensburgh.
    Prisoners’ counsel objected to any evidence being given of the bill, as it was not set out in the indictment, nor any reason alleged in said indictment why it was not set out. ' The court overruled the objections, and the prisoners’ counsel then and there duly excepted.

      Cross-examined: There were ten or twelve people in my store at the time; I heard Tomlinson say, “ Show the bill to this man to see if it is bad,” pointing to a man standing by.

      Patrick Taite was then called and'sworn for the prosecution. He testified as follows: I am a member of the Metropolitan Police; on the 13th August Mr. Meyer came outside his store and showed me a five dollar bill on the Judson Bank; it was,
    I believe, a counterfeit bill; I examined it by the light of a lamp outside the store.
    Counsel for prisoners objected to the officer testifying as to the alleged forgery, as he was not an expert, nor acquainted with the signature of either of the officers of the said bank, nor was any bill produced in evidence to justify his testifying concerning it. The court overruled the objection, and counsel for prisoners excepted.
    Witness continued: I then went into the store and arrested prisoners; I saw Mr. Meyer hand Smith the bill, and Smith held it in his hand, and when I attempted to arrest Tomlinson, he put the bill into his mouth and swallowed it.
    Counsel for prisoners objected to the witness testifying anything as to the destruction of the bill, as there was no averment in the indictment that the bill was destroyed; but the court overruled the objection atid admitted the evidence, and the prisoners’ counsel excepted.
    ‘ Witness continued: The bill Mr. Meyer showed me was, I "believe, on the Judson Bank of Ogdensburgh, State of Hew York, and was a five dollar bill.
    Counsel for prisoners objected to the officer testifying to any description of the bill, as the bill was not produced, nor was fhere any averment in the indictment of the destruction of the bill, or any reason given why it could not be produced, or a full description of said bill given; but the court overruled the objection and admitted the evidence. Whereupon prisoners’ counsel excepted.
    ' 'Cross-examined by counsel for prisoners: I have only had one case of counterfeiting before this; I have not been employed by the police department in cases of forgery; I am not an expert in these eases; I have no knowledge of the signature of any of the officers of the Judson Bank qf Ogdensburgh; I don’t know that I ever saw a bill on the Judson Bank before that day; I have been in business (grocery business) and know something of money.
    Counsel for prisoners then moved that as the officer was not competent to testify as to the alleged forgery, his testimony in that respect ■ should be struck out; but the court denied the motion. Whereupon defendants’ counsel excepted.
    Witness continued: The bill Meyer showed me I believe to be a forgery; I examined the bill by gas light; had it in my hand; it was a counterfeit bill.
    The prosecution then rested. Whereupon the counsel for the prisoners requested the judge to charge the jury that unless there was evidence of the forgery on the Judson Bank, they must acquit, and that there was no evidence of forgery on that bank. The judge refused so to charge, and the defendants’ counsel excepted.
    . Counsel for the prisoners then requested the judge to charge the jury that, unless there was evidence that the alleged note: was signed by some person dr persons as officers, or purporting to be officers of the Júdsoi# Bank of Ogdensburgb, with-' out which it could not be a bank note, or an instrument in the form or similitude of a bank note, they could not convict. The judge stated the jury must so find - the facts in order to convict the defendants. Whereupon the counsel for prisoners excepted.
    Counsel for prisoners then requested the judge to charge the jury that, unless there was proof that such a bank as that laid in the indictment was in existence, they could not convict; but the judge declined so to charge. Whereupon prisoners’ counsel excepted.
    The judge, amongst other things, charged the jury, that the onus of proving the non-existence of the bank was on prisoners, for the reason that said bill, on its face purporting to have been issued by the Judson Bank, was sufficient evidence of the existence of that bank, without other proof of that fact. To this portion of the charge, the counsel for the prisoners excepted.
    The jury then considered the case and rendered a verdict of guilty. Whereupon the counsel for the prisoners moved, in arrest of judgment, that the indictment was bad for not averring the reason which made the note in question 11 unknown.” The indictment merely avers, “ a bank note purporting to have been issued by a certain copartnership, “ or company, called the Judson Bank, and to the jurors aforesaid unknown,” but is bad and insufficient for not setting out the reason it was unknown.
    The judge overruled the motion, whereupon prisoners’ counsel excepted.
    The prisoners were sentenced to imprisonment for five years in the State prison.

      William F. Howe, for plaintiffs in error.
    . First. The note in question was not set out in the indictment, nor was any reason assigned in said indictment why it was not set out. Therefore, the court erred in admitting the evidence of Charles Meyer, as to the description of the note. (People v. Kingsley, 2 Cow. R., 522.)

      Second. The court erred in admitting the evidence of Patrick Taite, who, not being an expert in the detection of counterfeit money, nor acquainted with the signatures of the officers of the Judson Bank, was not competent to testify to the character of the alleged forged note.

      Third. The court erred in admitting Taite’s testimony as to destruction of the note, there being no averment in indictment that the note was destroyed.

      Fourth. The court erred in permitting the officer to testify to a description of the note, as the bill was not produced in evidence, and as there was no averment in the indictment of its destruction, nor any reason given why it was not produced.

      Fifth. The court erred in not granting the motion of plaintiffs’ counsel to strike out Taite’s testimony, on the ground that he was not an expert in the detection of counterfeit money, and had no knowledge of the signature of any of the officers of the Judson Bank.

      Sixth. The court erred in refusing to charge the jury, as requested, that unless there was evidence of the forgery of a note on the Judson Bank, they must acquit; and, also, in refusing to charge that there was no legal evidence of the note in question being a forged note upon the Judson Bank.

      Seventh. The indictment is bad, for not excusing, by proper averments, the omission to set out the note, and for not stating the reason why the note in question was unknown.
    It should have alleged the loss or destruction of the note as a reason why it was not set out in the indictment and exhibited in court.
    It is essentially necessary that every indictment for forgery should set forth the instrument charged as fictitious, in words and figures.. (2 Leach, 808; 1 East's Reports, 180; 3 Chitty's Criminal Law, 1039.) Or the omission must be exchsed by proper averments. (8 Mass. R., 110; 3 Carr & Payne, 591.)
    Again, if the instrument was lost, secreted or destroyed, the indictment should have alleged its loss, secretion or destruction. (People v. Bagley, 16 Wend. R., 53.)

      Eighth. All the testimony as to the alleged forgery, and of the description of the note, was improperly admitted, as the indictment gave no description of the note, nor averred any reason why it was not described.

      The court erred in denying .counsel’s motion in arrest of judgment.

      S. B. Garvin, for defendants in error.
   By the Court, Clerke, J.

No doubt the rule of the common law was, that, on an indictment for forgery or for uttering forged paper, it was generally necessary that the instrument alleged to be forged should be set forth in words and figures; and where this was Omitted, the cause of the omission must have appeared in the indictment. In cases, for instance, similar to the present, where the instrument had been destroyed by the prisoner, it could not, of course, be set forth precisely in words and figures; but it was essential that the cause of the inability to do this should affirmatively appear in the indictment. (The People v. Kingsley, 2 Cow. R., 522.) The reason alleged for setting out the instrument with this particularity was, to enable the court to see that it was one of those instruments which the law declared to be a crime falsely to make or knowingly to utter. I do not see, however, that any such .particularity was necessary for that purpose. I should think, if the denomination of the bill and the name of the bank or the individual whose name was forged were set forth, that it would enable the court sufficiently to ascertain, at the trial, whether the offense of forgery, or uttering said bill, had been committed. In some rare instances the omission may interfere with the proper preparation of the prisoner’s defense; but I am strongly inclined to suspect that this rule arose from the extréme caution with which judges tried prisoners, who, if found guilty, would be liable to the punishment of death. For this was the punishment, for a long series of years, attached to forgery; and it was difficult for our courts and juries to avoid the belief that the punishment was too severe for the offense. Consequently, when the penalty of death for this offense was abolished, the necessity of this particularity in the description of the instrument was repealed, so that, by the statute of 2 and 3 William IV, ch. 123, it is sufficient to describe the note as in a case of larceny. Accordingly, in Rex v. Burgess (7 Carr. & Payne, 490, 32 Eng. Com. L. R., 723), it was held, under this statute, that it was unnecessary to set out the date of the instrument. It was held in Rex v. James (7 Carr. & Payne, 553, 32 Eng. Com. L. R., 755), that in a count for forgery under the same statute, it was sufficient to charge that the prisoner “ did forge a certain promissory note for the payment of £50.” There are many similar cases in recent English authorities. No act similar to that of William IY has been passed by our legislature. I refer to it only for the purpose of showing that the particularity required by the common law was deemed a matter of form; and if the description minutely setting forth the instrument in words and figures was a matter of form, much more was the excuse for not conforming to this rule a matter of form. If it turned out on the trial, as in the case before us, that the prisoner had destroyed the instrument, how was he prejudiced by omitting in the indictment to state the reason why the instrument was not described precisely in words and figures ? The defendant’s own conduct furnishes the very best reason for the omission, and the mere statement of that conduct in the indictment could' have been of no benefit to him, and could not have aided the administration of justice at the trial.

The omission, therefore, being the omission of a statement which must be deemed in this case, at least, a matter of form, is cured by the provision in the R. S., which declares that “ no indictment shall be deemed invalid, nor shall the trial, judgment, or other proceedings therein be affected by reason of any defect or imperfection in matters of form, which do not tend to the prejudice of the defendant.” (2 R. S., 728, § 52.) This provision did not exist at the time of the decision in People v. Kingsley (2 Cow. R., 522), to which I have already referred. The only provision then existing, relating to the strictness of the common law in regard to omissions in indictments, related only to the words,- “ with force and arms.” This was afterwards enlarged by the revisers in that, part of the Revised Statutes above quoted.

The only other objection taken by the counsel for the plaintiff in error, that has any semblance of plausibility, is presented in his sixth point. If the judge was asked to charge the jury that unless there were evidence of the forgery of a note on the Judson Bank, they must acquit, he would have erred if he refused so to charge: But this request was

accompanied as a part of the same proposition and sentence with the words, “ and that there was no evidence of forgery on that bank.”

The judge was correct in declining to put this proposition to the jury. Although the note was not produced, there was some evidence on the subject, and it was for them to determine its weight and credibility.

There was evidence against both defendants to enable the j ury to pass upon their guilt.

The judgment should be affirmed.

Judgment affirmed.


author: By the Court, Olerke, J.

text:
    Supreme Court. New York General Term,
    September, 1862.

      Ingraham, Barnard, and Gierke, Justices.
    Henry Duffy, plaintiff in error, v. The People, defendants in error.
    Though a confession made by a prisoner under promise of favor cannot, as a general rule, be given in evidence against him, yet if it lead to the discovery of a material fact, so much of the confession may be proved as relates strictly to the fact discovered.
    Where a prisoner, charged with stealing a watch, induced by a promise to get him out of difficulty, told the officer in whose custody he was that the watch was at the pawn office, and the officer went to the pawn office and found the watch, which was identified on the trial by the owner, it was held that the confession made to the officer was properly admitted in evidence.
    Where a case depends entirely on the positive testimony of witnesses for the prosecution, and not on the effect which the jury may give to circumstantial evidence, it is not erroneous for the court to charge the jury that, if they believe the witnesses for the prosecution, it will be their duty to render , a verdict of guilty.

      This case came up on a writ of error to the New York General Sessions, where the prisoner was convicted of larceny.
    The questions arising on the trial are sufficiently set forth in the points made by counsel, and in the opinion of the court.

      S. H. Stuart, for the prisoner.
    I. The court erred in admitting officer Clark’s evidence of the finding of the (stolen) watch, in consequence of what the prisoner had said to him about it, after arrest, under promise of favor.
    II. The court erred in charging the jury as follows, viz.: “ If you believe the witnesses for the prosecution, it will be your duty to render a verdict either of robbery, or of larceny from the person, or of grand or petit larceny, and it will be for you to say. which.” .
    Verdicts in each of the following cases were reversed by this court, for error in the charges, which were as follows, viz.: “If you believe the witness, the case is within one of the degrees of manslaughter, and it is for you to say which.” (People v. Pfomer, 4 Park. Cr. R., 558.) “ The first two witnesses testify to a state of facts which, if true, establishes a larceny by the prisoner, and renders it incumbent on the jury to convict.” (The People v. Brien, 4 Park. Cr. R., 380; United States v. Fenwick, 5 Cranch, 562, and authorities there cited.)

      Nelson J. Waterbury (District Attorney), for the People.
    I. Evidence of what was done in consequence of the prisoner’s statement about the watch, was properly admitted. (Roscoe's Cr. Ev., 50; 1 Phil. Ev., 4th Am. ed., 554; 2 Russ, on Cr., 863; Rex v. Griffin, Russ. & Ryan, 151.)
    It has been doubted whether confessions, otherwise inadmissible, may be given in evidence when accompanied by the delivery of property; but the admissibility of the' acts done is submitted as an elementary principle. (Rex v. Warrickshall, 1 Leach, 263.)
    In Regina v. Gould (9 Car. & Payne, 364), where the question was the same as that asked in this case, the court, Tindal and Parke, JJ., admitted both the acts done and the declaration.
    Both were also admitted, after fall discussion, in Commonwealth v. Knapp (9 Pick. R., 495, 911).
    It is submitted that, as to the admissibility in evidence of the acts simply, there can be no doubt.
    II. The charge of the court was altogether unobjectionable.
    1. It was equivalent merely to saying that the prosecution had proved’enough to “go to the jury.1’
    2. The facts admitted of no construction or diversity of interpretation; they amount in law to the crime charged, and the court was bound so to charge.
   By the Court, Olerke, J.

I. As to the objection that the court erred in admitting the evidence of the policeman (Clark) relative to the stolen watch, which he found in consequence of what the prisoner had said to him after arrest, and under promise of favor, it is, indeed, the unquestionable rule, that confessions obtained under promises of favor are inadmissible. And in the case of Bichard Harvey, Lord Eldon, when Chief Justice (2 East P. C., 658), said he would direct an acquittal, unless the fact itself proved would have been sufficient to warrant a conviction without any confession leading to it, and, in conformity with this, he directed the jury to acquit the prisoner. But later authorities have established the rule, that so much of the confession as relates strictly to the fact discovered by it, may be given in evidence: For, the reason of rejecting extorted confessions is the apprehension that the prisoner may have been induced, by the promise of clemency, to say what is false; but the fact discovered shows that so much _ of the confession as immediately relates to it is true. (Rex v. Batcher, 1 Leach, 265; note to Rex v. Warrickshall, 1 Id., 263.)

In the case before us, the prisoner told the policeman (the witness) where the watch was, under promise that the latter would get him out of the difficulty; this must have been so, as, in consequence of what he said, the witness went to the pawn office and got the watch, and the watch was identified at the trial by the owner, as the one taken from him. I take no account of the fact that the witness did not testify, in express terms, that the prisoner told him where the watch was; the confession is plainly inferable, for, as we have seen, he went to the pawn office in consequence of what the prisoner had said about the watch.

But if this made any difference, and if the confession was expressly testified to, it would have been admissible under the rule now established; for it would have related strictly to the fact discovered. The objection is, therefore, untenable.

II. It is objected that the court erred in charging the jury, that if they believed the witnesses for the prosecution, it would be their duty to render a verdict either of robbery or of larceny from the person, or of grand or petit larceny. The case of The People v. Pfomer (4 Park. Cr. R., 558). is quoted to sustain this objection. But this, and the other cases to which reference is made, involved circumstantial as well as positive evidence; it, therefore, clearly rested with the jury in those cases to construe the circumstances; and the verdict did not depend exclusively upon the veracity of the witnesses, but also upon the effect which the jury would give to these circumstances. In the case under consideration, the proof was altogether positive; circumstantial proof was nowhere adduced, and the result depended exclusively upon the veracity of the witnesses. The charge was, therefore, correct.

The judgment should be affirmed.

judgment affirmed.


author: By ike Court, Leonard, J.

text:
    Supreme Court. New York General Term,
    May, 1862.

      Ingraham, Leonard and Nosekrans, Justices.
    John J. Hayes, plaintiff in error, v. The People, defendants in error.
    Form of an indictment for bigamy.
    Under an indictment for bigamy, strict proof of marriage is necessary. It cannot be established by inference, or cohabitation, or admissions only.
    Marriage is merely a civil contract, and may be entered into in any manner which clearly evinces the intention of the parties.
    Where, on the trial of an indictment fpr bigamy, it appeared that the prisoner, who had been previously married, and whose wife was still living, agreed to marry J. W., and procured a person dressed as a clergyman to perform the marriage ceremony, at which J. W. agreed to take the prisoner for her husband, and the prisoner agreed to take J. W. for his wife, and the person officiating pronounced them man and wife, and they afterwards cohabited together as such, it was held that the prisoner was guilty of'bigamy, whether the person officiating as a clergyman was in fact what he was represented to be, or was procured to personate a clergyman for the purpose of deceiving J. W. on that occasion.
    An indictment for bigamy was found against the prisoner, in the following form:

      City and County of New York, ss:

    The jurors of the People of the State of New York, in and for the body of the city and county of New York, upon their oath, present: That John J. Hayes, late of the first ward of the city of New York, in the county of New York, aforesaid, on the third day of February, in the year of qur Lord one thousand eight hundred and forty-five, did marry pne Sarah E. Blair, and her, the said Sarah E. Blair, did then and there have for his wife, and that the said John J. Hayes afterward, to wit, on the thirteenth day of September, in the year of our Lord one thousand eight hundred and sixty, at the ward, city and county aforesaid, while he was married to the said Sarah, with force and arms, did feloniously marry and take as his wife one Jane White, and to the said Jane White was then and there married, the said Sarah E. Blair being then and

      there living and in full life, against the form of the statute in such case made and provided, and against the peace of the People of the State of New York and their dignity.
    NELSON J. WATERBUBY, District Attorney. •
    The prisoner pleaded not guilty, and the issue came on to be tried before Hoffman, Recorder, and a jury, at a Court of General Sessions in the city of New York, in September, ■ 1861.
    It was proved on the trial, and also admitted by the prisoner, that he was married to Sarah E. Blair, at the parsonagé of St. James’ Church, Brooklyn, in February, 1845, by the Rev. Charles Smith, of the Catholic Church, and that the parties so married lived together as husband and wife till May, 1859, and that said Sarah E. Hayes (formerly Miss Blair) was still living, and was then in court.

      Jane White then testified that she became acquainted with the prisoner in May, 1860, and received several visits from him; that she afterwards, at his request, engaged to marry him; that he hired rooms in Thompson street, near Grand street, in the city of New York, and they went there to live; that he brought in a minister, and they were married in those rooms on the 13th day of September, 1860; that the prisoner told her she must keep the marriage secret, as there was some property coming to him; that he said his mother died in March and left some property, and if the marriage was known he would lose the property; that he showed her the papers, and said there was one house in Myrtle avenue and two in Fulton street, and that she promised to keep the marriage secret till he got the property, and that she had done so; that she had no intimation before her marriage that he was a married man.
    The witness further stated that after her marriage to the prisoner, they lived together as man and wife; that she did not know the person who performed the marriage ceremony; that the prisoner told her it was a minister he got, who would not reveal the secret; that it was the Protestant marriage ceremony; that no one was present except the prisoner, herself and the clergyman; that she did not know the name of the clergyman, nor where he lived, and had never seen him since he gave her a certificate; that the defendant took the certificate, and she did not know where it was; that the last she saw of it, it was in her trunk in a small box.
    On her cross-examination, she stated that she first saw the minister in the room ; that the prisoner went down, was gone ten minutes, and then came back with the minister; he was dressed like a minister; had on a white necktie; that she did not ask his name; that she could not describe the ceremony ; that he took a small book from his pocket, and read the Episcopal form, and asked her if she would take the prisoner for her husband, and she said yes, and he then asked the prisoner if he would have her for his wife, and he said yes, and then declared them man and wife; that she did not think it was necessary to have a witness; that she got the certificate that night; that the heading was printed, and the rest was then filled in by the minister; that the witness cannot read or write; that she had since tried to find the minister, and could not.
    Other witnesses were examined on both sides.
    After the testimony was closed, and the several counsel had addressed the jury,
    The court charged the jury, amongst other things, that marriage in this State is a civil contract and did not require the intervention of minister or magistrate to make it legal; that any present agreement between the parties. competent to contract to take each other for husband and wife, is a valid marriage.
    That if the jury believed, upon the evidence, that the defendant and Jane White, on the day testified to by her, in the presence of the man represented to be a minister, agreed together to be man and wife, and afterwards lived together* as such, the agreement was, in.the eye of the law, a sufficient marriage to sustain an indictment for bigamy, the fact that defendant had before that time married Sarah E. Blair, and that she was then living, being admitted; and it was of no consequence whether the man represented to be a minister was such or not.
    To each part of the charge, as above set forth, the defendant’s counsel excepted, and requested the court to charge as follows, to wit z
    That Hayes was not competent to contract marriage with any person on the 13th day of September, 1860, and a mere agreement on his part on that day to take a woman for his wife, she consenting to take him for her husband, does not constitute a marriage, and a prosecution for bigamy cannot be sustained therefor.
    But the court refused so to charge, otherwise than above stated, arid to the ruling and refusal the prisoner’s counsel excepted.
    The jury found the prisoner guilty, and the court sentenced • him to imprisonment in State prison at Sing Sing for the term of three years.
    The record was removed into this court by writ of error.

      James T. Brady, for the plaintiff in error,
    cited 3 Qreenl. Fv., § 205 ; Parsons on Contracts, 399.

      Nelson J. Waterbury (District Attorney), for the defendants in error,
    cited 1 Hill, 270; Fenton v. Heed, 4 Johns. R, 52; 8 Paige R,, 574; 2 Clinton's Dig., 929, “MarriageState v. Rood, 12 Verm. R., 396.
   By ike Court, Leonard, J.

Under an indictment for bigamy, strict proof of marriage is necessary. It cannot be established by inference, nor by cohabitation or admissions only. The defendant is never estopped from denying the fact in a criminal case. His conduct may, however, be so wicked as to exclude favorable presumptions in his behalf. In the present case, it was proved that the prisoner introduced to the complainant a person whom he represented to be a minister, and who conducted a marriage ceremony between them as a minister, taking a small book from his pocket and reading the Episcopal form. This person was dressed to represent the character in which he served; and it was manifest that it was designed by the prisoner that the complainant should believe him to be an ordained minister of the gospel. There was no proof, however, that he was, in fact, a clergyman, or authorized by law to certify a marriage for the purpose of registry. He asked the complainant if she would take the prisoner for her husband, and she answered, yes. The prisoner was asked if he would take the complainant as his wife, and he answered, yes. And the person officiating pronounced them man and wife. Here was every element necessary to constitute the contract of marriage. It was followed by cohabitation. The jury believed it was a reality to the complainant, whatever the prisoner intended. He may have procured some person falsely to represent himself as a minister, with the intent to deceive his victim, and to attain the object of his lust without any marriage.

Such a thing is possible. I see no reason, however, to presume that the prisoner committed another and different crime, in order to acquit him of the one with which he stands convicted here. Marriage, although the most solemn of obligations," is a civil contract, and may be entered into in any manner which clearly evinces the intention of the parties. It is altogether suitable that it should be celebrated in a manner to impress upon the parties and friends its sacred character. The law, as written in the statute, has wisely, I think, omitted to prescribe any form to be observed in entering into this contract.

I think the charge of the recorder was correct. The judgment should be affirmed.


author: By the Court, Leonard, J.

text:
    Supreme Court. New York General Term,
    May, 1862.
    Ingraham, leonard and losekrans, Justices.
    Joseph Cohen, plaintiff in error, v. The People, defendants in error.
    To convict of having feloniously received goods which had been stolen from an incorporated company, it is necessary to allege in the indictment, and to prove on the trial, that the company alleged to have been injured by the offense of the defendant was an existing corporation.
    The prisoner was indicted for feloniously receiving stolen goods. The indictment was as follows:

      Oity and county of New York, ss:

    The jurors of the People of the State of New York, in and for the body of the city and county of New York, upon their oath present:
    That Joseph Cohen, late of the first ward of the city of New York, in the county of New York aforesaid, on the sixth day of May, in the year of our Lord one thousand eight hundred and sixty-one, with force and arms, at the ward, city and county aforesaid, twelve hundred spools of cotton thread, of the value of five cents each spool, of the goods, chattels and personal property of Grover & Baker’s Sewing Machine Company, a corporation created by and existing under the laws of the State of Massachusetts, by Frank J. Thornton and certain other persons to the jurors aforesaid unknown, then lately before feloniously stolen of the said Grover & Baker’s Sewing Machine Company, unlawfully, unjustly, and for the sake of wicked gain, did feloniously receive and have (the said Joseph Cohen then and there well knowing the said goods, chattels and personal property to have been feloniously stolen), against the form of the statute in such case made and provided, and against the peace of the People of the State of New York and their dignity.
    NELSON J. WATBRBTJRY, District Attorney.

      A plea of “ not guilty ” was interposed, and the indictment came on to be tried in said court, before John T. Hoffman, recorder, and a jury, in the County General Sessions, held in the city of Hew York, in June, 1861.
    The district attorney, to sustain the said indictment, called

      James P. Denny, who, being sworn, testified as follows: I was in the employ of the Grover &' Baker Sewing Machine Company, of So. 495 Broadway; I had general charge of the business; Frank J. Thornton was the shipping clerk; his business was to take charge of the shipping of machines and silk and cotton thread; previous to the 8th of May, property to the amount of $1,200 was taken; I made inquiries at the store; in consequence of what I heard, I set Mr. Shaughnessey to watch Thornton; after we found he was taking goods, officer Wilson and another were set to watch him at the front and back doors of the store; Wilson shortly after reported to me, and the next day he arrested Thornton; .in consequence of something I heard from Thornton or the detective, I had Cohen arrested ; the silk taken from us was .marked “ Grover & Baker,” by label put on by the manufacturers; the cotton taken was manufactured by Orr & Hott, Glasgow, and sold in this city by Knox, in Pine street; it was principally used for sewing machines, and worth forty-five cents a dozen spools; I cannot say that the box of cotton, said to have been taken from the prisoner by officer Wilson, was ours; it was precisely like it; the company is located at Boston, Massachusetts.
    On being cross-examined, the witness said: It had the same manufacturer’s mark as ours, but others sell that cotton as well as we.

      Nicholas Shaughnessey was next sworn, and testified as follows : I was in the employ of the Grover & Baker Sewing Machine Company, in May last; so was Frank Thornton; his usual time to come was about half-past seven; I have seen him come about seven and go away again, and return about eight; I was directed to watch him, and did ; Monday morning, about twenty minutes to seven, I saw him take a box of silk, in the absence of the porter from that part of the store, and put it in his pocket, or inside his vest, and go with it through the back door out of the store; on the next day I saw him take another box of silk, and on the day following he took a box of cotton; he said he was going to ship it to Ohio; he was soon afterwards arrested; I had before seen him take packages; the box he took on Wednesday had no shipping mark on, nor had the others he took, that I know of; on Tuesday morning I did not follow him ; on Wednesday morning I saw him go into the Mercer House, and lost sight of him; he always said he was going to ship them; I cannot say if he shipped them or not.

      Frank J. Thornton was then placed on the stand and sworn. He testified as follows: I was in the employ of the Grover & Baker Sewing Machine Company, in, May last, and had been so for about one year; I first saw Joseph Cohen, the prisoner, at the Melodeon, in Broadway; he was keeping a small stand there; he afterwards came to me and asked me if I wanted to make $500 ; I asked him how; he told me to call at his house the following morning; I did call at 83 White street; he said that Grover & Baker had a large quantity of silk and cotton, and if I would bring him cotton and silk, I could have money at command at any time; he told me he had been in the. habit of buying the Grover & Baker silk and cotton for some time, at low prices; he showed me Grover & Baker’s silk, Wheeler & Wilson’s silk, and Mr. Singer’s silk; he told me that I need not be afraid to bring things there; on the following morning I took some sewing silk and carried to his house; I took the labels off; it was in a small box; I destroyed the box and tore the labels off; I hesitated to carry it in the street with the name on; it did not suit him in that state; he said he could buy all he wanted elsewhere, and if I did not bring it with the labels on, he did not want it; he went to Turner’s silk house and bought a bill of silk, but not in his own name; during the time I w.as there, I met five persons; two of them were victims, like myself; three of them, he told me, I need not be afraid of, as they were as large receivers as he was; one he warned me against, as he might interfere with the business; I took boxes of cotton and bundles of silk, all from the Grover & Baker Sewing Machine Company; I can’t tell how much; I went to Cohen’s house two or three times a week; the price paid for cotton was $12 per box of 100 dozen; for silk he gave me $3 per box; I generally took them there about seven or eight o’clock, in the morning.

      Cross-examined: Have lived in Hew York nine years; came from Rhode Island; I have been a collector, a grocery store keeper, and also a dry and fancy goods dealer in Broadway; I am married, and have been for the past eighteen months; I am indicted for the stealing of these goods; my salary was $10 per week; I don’t know the effect of being made a witness ; I know that, in certain cases, prisoners being used as witnesses are discharged; a clerk in the district attorney’s office told me that I would go to the State prison whether I was a witness or not; I asked the keepers of the prison what they thought, but could get no satisfactory information; I made a full written confession, and gave it to my wife to give to Mr. Garvin, the district attorney; I recollect taking a box, which I said I was going to ship to Ohio; that was the morning I was arrested; I was arrested by Wilson; I knew him, and'told him the whole story.

      William Wilson was next sworn for the People, and said: I am an officer; I was employed to watch Thornton, and did so; on the seventh of May I followed him to Ho. 86 White street; it was about seven o’clock a. m. ; he seemed to have something heavy in his coat pocket when he went in; when he came out it appeared, to be much lighter; on the morning of the eighth day of May, I saw him come out of his place of business with a box under his arm, go into the Mercer Street House and come out again, when I arrested him; on the afternoon of-the same day I arrested Gohen, the prisoner, in Broadway, with a box of spool cotton under his arm; he said there were twelve dozen in .the box-; 1 saw him come out of his house with it; I afterward took him to the station house, and then searched his house, but found nothing.

      On the part of the defense,

      Henry Turner was called, and testified as follows: I am. a bilk manufacturer and seller in this city; I sell a large quantity of silk to the Grover & Baker Company, and I also sell to others; I have sold silk to the prisoner; about $100 worth, perhaps; the three bills shown are from my store; one of them is in my handwriting, and the others my clerks’; I remember selling him silk; can’t say when was the last time; whether it was April: or May last, or not; it is worth- $7 per pound; that is the price I sell to Grover & Baker for, and I sold to the prisoner for the same. •
    Previous to going into the defense, prisoner’s counsel asked the court to direct an acquittal, upon the ground that there was no evidence showing that the Grover & Baker Sewing Machine Company was a corporation, as alleged in the indictment, which' the court refused to do, and to which refusal the prisoner’s counsel excepted.
    The prisoner was convicted and a writ of error was issued, under which the record was removed into this court for review.

      S. H. Stuart, for the plaintiff in error.
    It is submitted that the verdict must be reversed, because there is no evidence that the “ Grover & Baker Sewing Machine Company ” is a corporation, as averred in the indictment.
    It is a rule of the first importance that the name of the party injured, or to whom stolen property belongs, should be correctly stated,, and that the proof support the statement. (1 Archb. Cr, Pl, 16th ed., 176.)
    If the goods of a corporation be stolen, the property must be charged to be in the corporation, and not in the individuals who compose it. It may not, in all cases, be necessary to aver the political existence of the corporation; but even where it is not averred, its existence as such must, nevertheless, be shown by evidence. (King v. Potnell, 2 East P. C., 1059; 1 Leach R., 123; Arch. Cr. Pl., 10th ed., 214.)

      This same doctrine is enunciated in People v. Stearns (25 Wend. R.) One of the objections of the prisoner in that case was, that the Bank of Kentucky was not averred in the indictment to be a corporation, and that, therefore, no evidence could be given showing it to be so. The court held, that although there was no special averment that the bank was incorporated, but being necessary to show that it was a corporation, the charter or act of incorporation could be given in evidence, which was done. The point of the exception was, not that no evidence had been given tending to prove it a corporation, but that, without an express averment, evidence had been given showing it to be incorporated.
    In the case at bar, both from legal necessity and by reason of the averment in the indictment, it became incumbent to prove that this “Sewing Machine Company ” was a corporation, and the objection is, that it was not done; that no evidence whatever was given tending to prove it to be so. The averment is, that the company was a .corporation, existing in and under the laws of the State of Massachusetts, while0 not one fact was proved, nor one word of testimony given, going in any degree to show that the company had a corporate' existence.
    The case of Stearns (25 Wend. R., 409); of Peabody (21 Wend. R., 472); of Chadwich (2 Park. Cr. R., 163); of Wilber (4 Park. Cr. R., 19); of De Bow (1 Denio R., 9); of Mead (27 Vermont, 277), with authorities cited in those eases, show conclusively that* where a corporation is the subject of a direct criminal injury,'its existence must be affirmatively, shown by evidence. Whether an omission to aver the existence of a corporation relieves (it does not) the prosecution from proving it, need not be now considered, since it is here specially and with much particularity averred that this company is incorporated. Unless, then, the avérment of its being a corporation can be rejected as surplusage, or be in some way disregarded, the verdict must be set aside. That this averment cannot be disregarded, is manifest from the following authorities:
    The court cannot reject as surplusage that upon which the jury may have given their verdict. (Commonwealth v. Atwood, 11 Mass. R., 11.)
    No allegation, whether it be necessary or not, which is, in fact or by the pleadings, made material, can be rejected as surplusage. (United States v. Howard, 3 Sumn., 12.)
    Surplusage in an indictment consists of such matter only as is in no way essential to the description or identity of the offense charged, and that does not contradict that which is. (6 Phil. L. R., 93.)
    If an indictment allege matters descriptive, however unnecessary to the charge, they become as much the subject of proof as those that are essential to the crime preferred. (United States v. Porter, 3 Day, 283.)
    Averments that might with propriety be dispensed with, but being inserted become descriptive of that which is essential, cannot be rejected as surplusage. (John v. The State, 24 Miss. R., 569; State v. Clark, 8 Foster R., 429; State v. Hughes, 1 Swan R., 262; State v. Copp, 15 N. H. R., 212; State v. Shoemaker, 7 Mo. R., 177; Morrison v. State, 24 Miss. R., 36.)
    But dismissing (for the argument) the necessity of showing by evidence that this company is a corporation, and regarding it as a non-incorporated company, still this indictment cannot be sustained. Nothing is better settled at common law than that where the owners of stolen property form an unincorporated company or copartnership, the names of all the members comprising the association must be correctly stated, and the •property laid to be in them as'individual persons. (Whar. Cr. L., 465; Hogg v. State, 3 Blackf, 326; Rex v. Shovington, 1 Leach R., 513; Rex v. Bensall, 1 Moody C. C., 15.)
    The only innovation our statute has made upon this rule, is the following section:
    “ When any .offense shall have been committed upon or in relation to any personal property belonging to several partners or owners, the indictment.for such offense shall be ¡deemed sufficient if it allege such property to belong ¡to any one or more of such partners or owners, without naming them all.” (3 R. S, 5th ed., p. 1018.)

      Rejecting the averment that this company is a corporation, and we have “ the Grover & Baker Sewing Machine Company,” without any member, partner, officer or agent, or any president or director named or described as comprising or representing it, in whom the property mentioned might be supposed to vest. It will not be contended that the property can be laid as the goods of the “company ” merely, without specifying'some one—-some private individual or official person of the company, in whom the title to the property may be taken to rest. In a company or copartnership, or the like, this must be done; in a corporation it cannot be done. The proof is as much wanting, in this view of the case, as it is having reference to the existence of a corporation. It is hard to see how, in either .aspect, this verdict can possibly be sustained.

      J. H. Anthon, for defendants in error.
   By the Court, Leonard, J.

It was necessary to allege in the indictment, and also to prove at the trial, that the corporation alleged to have been injured by the offense of the defendant, was an existing corporation. The evidence wholly fails in this respect. There must be a new trial in the Sessions. •

Judgment reversed, and new trial in the Sessions ordered.


text:
    Supreme Court. New York General Term,
    May, 1862.
    Ingraham, Leonard and Barnard, Justices.
    George F. Clements, plaintiff in error, v. The People, defendants in error.
    Form of an indictment for forgery, in the third degree,- in forging and uttering a bank check.
    An indictment which charges the uttering of a forged bank check will not be sustained by proof on the trial of the uttering of a check, on the face of which was a forged certificate, purporting to be signed by an officer of the bank on which the check was drawn, though the check with the certificate on its face be set forth, in Turn verba, in the indictment.
    The words, “ certified by Sparks, Bank J. C.,” written on the face of a check drawn on the ¡Bank of Jersey City, constitute no part of the check, and proof of the forgery of such a certificate will not support a charge of forging the check.
    This case came before the court on a writ of error. By the return, it appeared that an indictment in the following form} was found in the New York General Sessions, against the plaintiff in error:
    “ City and County of New York, ss :
    The jurors of the People of the State of New York, in and for the body of the city and county, of New York, upon their oath present: That George B. Clements, late • of the first ward of the city of New York, in the county of New York aforesaid, on the 3d day of September, in the year of our Lord one thousand eight hundred and sixty-one, with force and arms, at the ward, city and county "of New York, aforesaid, feloniously did falsely make, forge and counterfeit, and cause and procure to be falsely made, forged and counterfeited, and willingly aid and assist in the false making, forging and counterfeiting, a certain instrument and writing, commonly called a bank check, which said false, forged and counterfeited instrument and writing, is as follows, that is to say:
    “No. 492. Jersey City, Sept. 3, 1861.
    THE BANK OP JERSEY CITY,

      Pay to the order of Imermore, Clews & Mason, Twenty-four hundred, sixty-six doUa/rs ninety-three cents.

    M. BARKER & SON.
    Certified by Sparks, Bank J. 0.
    $2,466.93.”

      With intent to injure and defraud Charles F. Livermore, Henry Clews and Henry M. Mason, and divers other persons to the jurors aforesaid unknown, against the form of thó statute in such case made and provided, and against the peace of the People of the State of Hew York and their dignity!
    And the jurors aforesaid, upon their oath aforesaid, do further present: That the said George B. Clements, late of the ward, city and county aforesaid, afterward, to wit, on the day and year last aforesaid, with force and arms, at the ward, city and county aforesaid, feloniously and falsely did utter and publish as' true, with intent to injure and defraud the said Charles F. Livermore, Henry Clews and Henry M. Mason, and divers other persons to the jurors aforesaid unknown, a certain false, forged and counterfeited instrument in writing, commonly called a bank cheek, which said last mentioned false, forged and counterfeited instrument and writing is as follows, that is to say:

      “ No. 492. Jersey Qity, Sept. 3, 1861.
    THE BANK OE JERSEY CITY,

      Pay to the order of Livermore, Qlews & Mason, Twenty-four hundred sixty-six dollars ninety-three cents.

    M. BARKER & SON.
    $2,466.93.”
    Certified by Sparks, Bank J. C.
    The said George B. Clements, at the said time he so uttered and published the last mentioned false, forged and counterfeited instrument and writing6as aforesaid, then and there well knowing the same to be false, forged and counterfeited, against the form of the statute in such case made and provided, and against the peace of the People of the State of Hew York and their dignity.
    NELSON J. WATERBURY, District Attorney.''

      The defendant having been arraigned upon said indictment, pleaded not guilty, and the trial thereon was had before John T. Hoffman, Recorder of the city of Hew York, and a jury, at a Court of General Sessions in the city of Hew York, on the ninth day of October, 1861.
    The prosecution called as a witness,

      William B. Bend, who testified: I am in the employ of Livermore, Clews & Mason, and was September 2, 1861, as clerk; saw prisoner at their store, first time, September 2; he presented a letter now shown; don’t recollect that he said anything; Clews opened it; marked at the foot the price at which the notes would be supplied, and handed it to me; I made out statement at that price, and handed it to the prisoner ; I saw it the following day; he took it and asked when he could have the notes; he came on the 3d, in the morning, and presented second letter; it inclosed a check which is attached to complaint; I saw it was for amount of statement, and appeared to be certified; I handed him the five treasury notes of $500 each, and he left the store in a few minutes; next saw him in station house; he was arrested on complaint of the house.
    (Check here read in evidence.)

      Cross-examined: First letter was in envelope fastened with gnm; Clews broke it open and read it; don’t recollect he said he was requested to get the information ; he did say, “ when can I get the notes ? ” don’t recollect he said any one told him to ask; the second note was sealed; no conversation at that time.

      S. Hatch, sworn for prosecution: I am cashier of “ Bank of Jersey City,” and I sometimes certify checks; when I don’t, teller does; teller’s name is Post; he has been in the bank four or five years, and still is; no clerk or teller by name of Sparks; this certificate is not the certificate of the bank, or any one authorized to certify by the bank; we have an oval stamp certified payable at Ocean Bank for checks to be used in Hew York, and name written under note of Hatch or Post; checks used in Jersey City we merely write “ Good, Post,” or

      “ Good, Hatchno other bank of Jersey City ; no such person as Sparks in our bank.
    The testimony having been closed, and no evidence having been offered, by defendant, the case was summed up.
    The recorder charged the jury substantially to the effect, that if they were satisfied from the evidence that the certificate on the check was a forgery, and that the defendant uttered said check with the forged certificate thereon, knowing the same to be forged, and with the intent to defraud, it would be the duty of the jury to convict. To which the counsel for the prisoner excepted.
    The counsel for the prisoner requested the court to charge as follows:

      First In order to sustain the indictment, the prosecution is bound to prove that the signature of M. Barker & Son is a forgery. Ho such evidence has been adduced.
    The court refused so to charge. To which refusal the counsel for the prisoner excepted.

      Second. The indictment does not charge that the alleged forged instrument is “ an order for the payment of money, or an instrument by which any pecuniary demand is created,” which averment is essential.
    The court refused so to charge. To which refusal the counsel for the prisoner excepted.

      Third. The indictment does not charge the forgery of the certificate, which is no part of the check, and is not essential to its validity, and creates no demand or obligation for the payment of money, and the prisoner cannot be convicted under this indictment, which charges only the forgery of the check.
    The court refused so to charge. To which refusal the counsel for the prisoner excepted.

      Fourth. If the firm of M. Barker h Son had no account in the Bank of Jersey City, and the prisoner, knowing the feet, fraudulently obtained the treasury notes from Livermore, Clews & Mason, he is guilty of obtaining money by a false token, and cannot be convicted under this indictment.

      The court charged that the first part of this proposition was correct, but refused to charge as requested in the latter portion thereof. To which refusal the counsel for the prisoner excepted.
    The jury found the prisoner guilty. The prisoner was sentenced to the State prison for the term of four years.

      Jonas B. Phillips, for plaintiff in error.
    1. The court erred in refusing to charge that in order to sustain the indictment, the prosecution was bound to prove that the signature of M. Barker & Son to the check was a forgery.
    It is an established rule that the evidence offered must correspond with the allegations in the indictment, supposing the allegations to be material and necessary.
    The indictment in this case alleged the forgery of the check. Ho evidence having been introduced to sustain such allegation, which was material and necessary, the court manifestly erred in refusing to charge as above requested. (1 Greenleaf on Ev., § 51; Best's Principles of Ev., §§ 22-249.)
    2. The court erred in refusing .to charge that the indictment does not charge that the alleged forged instrument “ is an order for the payment of money, or an instrument by which any pecuniary demand is created.”
    The prosecution having only offered evidence to show the certificate to be a forgery, such averment became essential, as the certificate, upon its face, creates no demand or obligation for the payment of money.
    The indictment must show the forgery of an instrument which, on being described, appears, on its face, naturally calculated to work some effect on property; or, if it be not complete for that purpose, some extrinsic matter must be shown whereby the court may judicially see its tendency. (2 Archb. Crim. Pl., Waterman's Notes, 7th ed., 808.)
    3. The court also erred in refusing to charge as requested in the third proposition. The certificate is no part of the check, and is not essential to its validity.

      The forgery of a mere addition to the instrument, which has not the effect of altering it, but -is merely collateral to it—as, for instance, a forged indorsement, or acceptance to a genuine bill of exchange—will not support an indictment for the forgery of the entire instrument. The forgery of such addition must be specially alleged and proved as laid. (Whart. Am. Cr. L., ed. of 1846, 336.)
    4. The court erred in refusing to charge that the defendant could not be convicted under this indictment, if the firm of M. Barker & Son had no account in the Bank of Jersey City, and the prisoner, knowing the fact, fraudulently obtained the treasury notes from Livermore, Clews & Mason, in which case he would have been guilty of obtaining money by a false token* and not guilty of forgery. »
    5. The alleged forged certificate in no respect resembled a genuine certificate of the teller or cashier of the Bank of Jersey City. The instrument must appear, upon the face of it, to have been made to resemble a true instrument of the description named in the indictment. (United States v. Morrow, 4 Wash. C. C. R., 738; 4 Taunt., 300; Russ. & Ry., 212-219.)
    6; The conviction under this indictment could not be pleaded in bar to an indictment for forging the certificate.

      John H. Anthon, for defendants in error.
    I. The name given to an instrument, by way of description, is not to be regarded when the instrument is set forth at length in the indictment. (Whart. Cr. L., ed. of 1851, §§ 350-1467.)
    II. The words “ certified by Sparks; Bank J; C.,” having been set forth in hcec verba in the indictment, and having been alleged a forged instrument, the proof of its forgery sustains the verdict, and it is immaterial that the other portions of the instrument, or another instrument, was also set forth in the indictment, they being necessary, and only necessary, to explain the forged clause.
    A. bond is alleged in an indictment as "forged. The proof shows the name of another obligor added. The rule here is that the forgery may be charged, and be supported by evidence of the alteration. (State v. Gardiner, 1 Iredell R, 27.)
    It is a variance to allege the forgery by a name other than its true name, when the statute affixes a penalty to forgery of the instrument alleged, different from the penalty affixed to the forgery of the true instrument. (2 Archb. Cr. Ev., 7th ed., 807.)
    Otherwise, however, when the penalty is the same.
    III. In the manner and form, as the instrument was uttered, so it was pleaded in the indictment. The negotiable market value of the instrument consisted in its being a certified check. The prosecutor was deceived by it as a certified check. The evidence showed that the instrument was not a certified check, but had been made to appear so by a forgery of the certificate' clause.
    IV. Considering the instrument as a whole, no proof having offered as to the goodness of any part, and one part having been proven forged, the whole becomes a forged instrument, and the count in the indictment for uttering it was proven and the verdict justly rendered.
    1. The particular part of the instrument forged need not be pointed out on the face of the indictment, and is rarely done so.
    2. But few forged instruments are all forgeries. They may be forged by additions, by alterations, by erasures, by annexations.
    V. There being no exception to evidence, the only question, on appeal can be, is the indictment sufficient to sustain the verdict ? The verdict finds the certificate a forgery, and uttered by the prisoner.
    VI. The English decisions to the contrary (Rex v. Howell, 6 Carr. & Payne, 148; Butterwich's Case, Roscoe's Cr. Ev., 465; 2 Arch. Cr. Pr., 808, notes) are all based upon the English statute of 1 William IV, ch. 66, § 4; which statute provides in terms for the forgery of a draft with a penalty, and also in terms for the forgery of an acceptance.
    In Rex v. Howell, the court uses the following words: “ The statute has made a distinction between bill and acceptance, for it uses both terms. If proof of forging an acceptance will support a count for forging a bill, the word ‘ acceptance ’ in the statute is wholly nugatory.” .
    The statute of the State makes no such distinction, but defines the crime by a word applicable to check, certificate, draft, acceptance, or any of them: “Every person who, with intent to injure or defraud, shall make, alter, forge, or counterfeit any instrument or writing, being, or purporting to be, the act of another, by which any pecuniary demand or obligation shall be, or shall purport to be created, increased, discharged, or diminished,” etc. (3 R. S., 5th ed., p. 951, § 33.)
   By the Court, Ingraham, P. J.

The first count of the indictment charged the prisoner with having falsely made, forged and counterfeited a certain instrument in writing, commonly called a bank check, &c. The check was set out in the indictment in hcec verba, and upon the face of it were written the words and letters, “ Certified by Sparks, Bank J. 0.” The second count charged the felonious and false uttering of the same check as a certain false, forged and counterfeited instrument and writing, commonly called a bank check, and also contained a copy of the check.

Upon the trial the only writing shown to be forged was the writing across the face of the check. The proof showed there was no such clerk as Sparks in the bank on which the check was drawn.

The counsel for the prisoner, among other requests, asked the court to instruct the jury that the indictment did not charge the forgery of the certificate, which was no part of the check, and not essential to its validity, and created no demand or obligation for the payment of the money, and the prisoner could not be convicted under the indictment which charged only the forgery of the check.

• The prisoner was convicted.

Upon the argument, the counsel for the People conceded that the prisoner could not be convicted under the first count of the indictment which charged the forgery. Of this I think there can be no doubt. It will not be pretended that the words written across the face of the check were any part of the check, in any way necessary to give it validity or to add to its negotiability. They might have been given in a different form, and on a separate piece of paper, and would have left the check in its original form, valid and effectual for all the purposes for which it was made.

This writing can be considered as nothing more than a certificate that at its date the check would be paid by the bank on presentment.

The forgery of an acceptance on a bill of exchange is not properly described in an indictment which charges the forgery of the bill only.

The acceptance is no part of the bill of exchange. The bill is perfect without it. It can be protested, sued upon and collected, whether accepted in writing or not, and the forgery of the bill can be counted upon as an offense just as well, if not accepted, as if it had been previously accepted. This question has been the subject of direct adjudication in England, as applicable to a bill of exchange.

In Rex v. Howell (25 Com. Law R., 366; and 6 Car. & Payne, 148), it was held that a' count in an indictment, charging the uttering of a forged bill, was not supported by proof that the prisoner uttered the bill and that the acceptance was a forgery.

In this case, the question was reserved for all the judges, who agreed that the conviction for uttering the instrument was wrong, and could not be sustained. The whole theory of the criminal law renders the enforcement of such a rule necessary. In no pleading are so much certainty and particularity required as in an indictment. “ That certainty and precision (said. Edmonds, P. J., in Briggs v. The People, 8 Barb. R., 547) in an indictment is required, which will enable the defendant to judge whether the facts and circumstances stated constitute an indictable'offense; that he may know the nature of the offense against which he is to prepare his defense; that he may plead a conviction or acquittal in bar of another indictment, and that there may be no doubt as to the nature of the judgment to be given in case of conviction.”

It does not help the case to say that the indictment sets out the instrument in hcec verba, and therefore the prisoner was informed what the instrument was on which the prosecution rested. Suppose, in this case, the prisoner had uttered the check, not knowing of the forgery, or if the writing of the acceptance was a doubtful question, admitting of different opinions whether it was genuine or not, would a prisoner, under such an indictment, be led to prepare proof of the acceptance, or would he not rather confine his preparation to proof of the genuineness of the signature of the drawer? And when told on the trial the forgery is in the acceptance, he may well reply, no such charge is made against me, and I am not prepared to meet it.

I can see no ground for any distinction between forging the instrument and uttering the instrument knowing it to be forged. In both cases the prisoner is entitled to be told what his offense is, in such a manner that he may be prepared to meet the charge, and so clearly that, if. once tried and disposed of, the decision may be pleaded in bar of any other indictment. That could not be the case under the present indictment.

It is suggested that the decisions in England are based upon the statute, which distinguishes between a draft and an acceptance. Our statute distinguishes quite as much. It does not" specify an acceptance in any case, but after enumerating the terms of the offense, “falsely making, uttering, forging or counterfeiting,” applies it to any instrument or writing purporting to be the act of another, by. which any pecuniary demand or obligation shall be or purport to be created, &c. Here the check is the act of one party. The acceptance or certificate is the act of another party, each creating different obligations, and each valid in itself, and constituting a separate^ instrument. (3 R. S., 5th ed., p. 951, § 33.)

The judgment should be reversed, and a new trial ordered in the Sessions.