author: Birchard, J.

text:
    *Luther J. Sasser v. The State of Ohio. Luther J. Sasser v. The State of Ohio.
    On an indictment for having in possession false and counterfeit hills on a foreign hank, with intent to barter, etc., the state is not hound to prove-it to he an incorporated bank, by the production of its charter.
    Possession of such hills, with intent to barter or dispose thereof for the benefit of another, is within the statute.
    On an indictment containing two counts substantially alike, a verdict of acquittal upon one, and of guilty upon the other, does not, necessarily, present such a case of repugnancy as to require an arrest of judgment-

      These are writs of error to the court of common pleas of the •county of Hamilton.
    In the first of these cases the plaintiff was indicted for “having in his possession, and secretly keeping, a bank note plate, for the purpose of striking and printing (alse and counterfeited bank notes, "to wit, false and counterfeited bank notes, in the likeness and similitude of true and genuine bank notes, of the Bank of Tennessee, of •the denomination of $20,” etc. The second count was the same, with the addition, that the possession was for the purpose of printing counterfeited bank notes. At the October term, 1844, he was found guilty on the second count, and not guilty on the first, and ■sentenced, upon the second count, to imprisonment in the penitentiary for five years. A bill of exceptions was taken during the trial, from which it appears that the prosecuting attorney proved, by parol, that there was such a bank as.the one named in the in'dictmont, and that its bills, of the denomination specified, were current in Ohio. The plaintiff objected to this proof, and insisted that the act incorporating the Bank of Tennessee was the only •evidence that could be introduced; which objection was overruled. The court charged the jury that the plaintiff might bo convicted, though they should not be satisfied that he intended to strike or print any false and counterfeited notes lor himself, or in any way for his own benefit and advantage, if he had the *plate in his possession, and secretly kept it ior another person who had formed a design to use if, he well knowing such formed design and purpose, and entering into such guilty design and purpose, and keeping it to enable that other person to effect the said purpose of striking or printing false and counterfeited notes; but that if the plaintiff was merely a bailee of the plate, knowing it to be false, etc., they should not convict.
    Numerous errors are assigned upon the record, in substance:
    1. That the court erred in not requiring the production of the .act incorporating the bank named.
    2. They misdirected the jury by their instructions.
    3. That the verdict upon the first count is repugnant.
    In the second case the plaintiff was indicted lor having in his .possession, etc., false, forged, and counterfeit bank notes, made as for true and genuine bank notes of the Merchants and Mechanics’ Bank of Wheeling, of the denomination of five dollars, lor the purpose of selling, bartering, and disposing of the same, etc.

      The second count described the notes as being in blank, and in-, other respects was like tho first. On this indictment the plaintiff was also convicted, and sentenced for five years. The bill of exceptions shows the prosecutor proved, by parol, the existence of the bank, and that its notes, of five dollars, were current in Ohio;, which was objected to, and the objection overruled. The court charged the jury that they might convict the defendant, although they might not be satisfied that he intended to sell, or in anyway part with the notes for his own benefit, if he was detected with the-notes in his possession, and actually held the same for another person, with the knowledge that such other person, being the owneri had the formed design and guilty purpose, and thedefendantentered into such purpose, and kept the notes to enable him, the owner, to-effect that purpose; but if a mere bailee of the notes, he could not bacon victed.
    A number of errors are assigned upon the record, which maybe reduced to the first two above named.
    ^William M. Court, for plaintiff in error:
    First, as to the reception of the evidence objected to in both cases.
    It is submitted that tho court erred in holding that secondary evidence was admissible to show the power of the banks to issue-the notes mentioned in the indictments.
    It was settled in Jonte’s ease, at the last term of the Supreme-Court for Hamilton county, that an indictment can not be sustained for forging or uttering bank notes, which, if genuine, would be illegal.
    Before this decision it was the practice to sustain indictments-for forging anything in the shape of bank notes, and therefore it was deemed immaterial whether tho bank mentioned in the indictment was incorporated or not. But now the legality of the-bank is part of the issue, and the prosecutor must establish it by competent evidence, where the corporation is not created by the-laws of this state, or of the Union.
    The legality of a reputed bank can not be presumed by the court in a civil case, and a fortiori, not in a criminal case. Lewis v. Bank of Kentucky, 12 Ohio, 150, decides that the act of incorporation must be proved, if not admitted by the pleadings, and the-bank is a foreign one. The evidence of brokers, as to the reputed legality of the bank, and its power to issue notes of a certain denomination, we submit, would not bo sufficient.
    In Ingraham v. Hart, 11 Ohio, 255, the court held that the existence of a law in a sister state, or foreign jurisdiction, is to be proved.
    In Brown v. State of Ohio, 11 Ohio, 280, the court held that, when the prosecution proved that the defendant acted as the officer of a company or association, if it existed in this state, the court and jury, without the introduction of testimony from their presumptive knowledge of the laws of Ohio, would know that the company was not chartered. ‘-If, however, the association for whom the.defendant exercised the office, existed elsewhere than in Ohio, the rule would not hold. *The private acts, or statutes of other states, must be private in this.”
    In Rex v. McKeay, 1 Mood. C. C. 130, there was an indictment, in England, for forging a note of the Bank of Scotland. It was objected that the charter, empowering the issue of such not'es, was not proved ; the objection was reserved for the opinion of the twelve judges, and it was held by them that, as the act of 48 George III, which they were bound to notice, recognized the bank to draw and issue such notes, it was not necessary to prove the charter.
    It would be unnecessary to prove a charter of a bank of the United States, established by Congress, because the courts of this state would notice the laws of Congress, as well as the laws of this state. And the federal courts take judicial notice of the state laws.
    If the banks in question were actually authorized to issue notes of the denominations mentioned in the indictments, there would not have been the slightest difficulty in proving the fact. A volume of the printed statutes might have been produced, or a recognized digest, and tins would have been sufficient. Proof that the notes were received in the community, and that the bank “was reputed and taken to be an institution legally established by the laws of the State'of Virginia,” was insufficient. The laws of that state should have been proved by something more than reputation. 1 Phil. Ev. 401; Ros. N. P. Ev. 60. The written law of a foreign state is to be proved by a copy; the unwritten law by the testimony of persons versed in the laws. Story’s O. L. 528. The court are to decide what is the proper evidence of the laws of a foreign country. Ib. 529. “ As to the manner of proof, this must vary according to circumstances. The general principle is, that the best testimony or proof shall be produced which the nature of the thing admits of; or, in other words, that no testimony shall be received which presupposes better testimony behind, and attainable by the party who offers it. This rule applies to the proof of foreign laws, as well as of other facts.”
    *There is an elaborate note on this subject, in 3 Phillip’s Evidence, 1136, fully supporting the above propositions. In general, where the usual evidence of a written law is not attainable, inferior evidence may be received. In ordinary cases, a written law is to be proved by a copy; but it is sufficient to produce a volume purporting, on its face, to contain the laws of a sister state. Raynham v. Canton, 3 Pick. 293-296. In Vermont, an act incorporating the Bank of Troy, in New York, was read from a printed volume of the laws of New York, purporting to have been published by authority of the legislature. State v. Slade, 1 D. Chip. 303. And, see the same doctrine, in Taylor v. Bank of Illinois, 7 Mon. 585; Kean v. Rice. 12 Serg. & Rawle, 203; Thomas v. Musser, 1 Dall. 462; Biddis v. James, 6 Binn. 321; Taylor’s Adm’r v. Bank of Alexandria, 5 Leigh, 471. The unwritten laws, customs, etc., of another state, are proved “ by the testimony of competent witnesses, instructed in the law, under oath.”' “The laws of the several states are to be judicially noticed in the courts of the federal government, without being formally proved.”
    With regard to the practice that may have hitherto prevailed in cases like the present, we need only add, that practice is not to prevail against principle. See "the recent decision of the House of Lords, in O’Connell’s case, and the recent decisions of this court.
    An indictment can not be sustained for forging bank notes, which, if genuine, would be illegal. People v. Shall, 9 Cow. 778; 2 East’s P. C. 948; Pennsylvania v. Misner, Addis. 44; Butler v. Commonwealth, 12 Serg. & Rawle, 237; People v. Fitch, 1 Wend. 198; Pateman’s case, Russ. & Ry. 455; Burk’s case, Russ. & Ry. 496; Richard’s case, Russ. & Ry. 193; Randall’s case; Russ. & Ry. 195; Moffat’s case, 1 Leach, 432.
    In Rex v. Catapode, Russ. & Ry. 64, it was held to be no offense to have a plate for making bills of exchange in the name of a company not authorized to make such bills. Of ^course, if the actual forging of notes, which, if genuine, would be illegal, be not indictable, it follows that the intention to forge such notes can not be indictable. There is, however, one case provided for by the Ohio statute, where the forging of a note, which would be invalid, if genuine, is made punishable, and that is the case whore a note is made or passed, purporting to be the note of a bank which never existed in point of fact. Swan’s Slat. 236, sec. 29» But this indictment, for the unlawful possession of forged notes, does not allege that the Bank of Yirginia never existed; and it will be observed that the last-mentioned clause is confined to the-actual passing or making of such notes, and does not apply to a possession with intent to pass, nor to the possession of a plate.
    If the court should be of the opinion that the evidence was insufficient to warrant the convictions, the judgments will be reversed, and the court will order the plaintiff to be discharged by virtue of the power given by the act, as the plaintiff ought not to be tried again, if he was legally entitled to an acquittal for want of evidence.
    With regard to the construction put upon the statute of Ohio by the court of common pleas, and the other questions in the two-cases, wo will first proceed to consider the indictment for intending to pass forged notes.
    The words of the statute are, “for the purpose of selling, bartering, or disposing of the same.” Swan’s Stat. 236, sec. 29. It was admitted by the prosecutor, and laid down by the court, that these words do not apply to a bailee, for he has the mere custody, without power to dispose of, in any way, the things committed to his charge. We admit that" if a statute, in plain, unambiguous language, creates a new offense, by declaring that it shall be a crime to knowingly possess any particular article, without saying anything about the purpose or intention, it is quite clear that a mere depositary would be liable to an indictment. But that is not the present case.
    But, it is said that if the bailee keep the notes for the purpose of enabling the owner to dispose of them for his own use, the bailee is liable to an indictment under the above section. *We deny this construction of the statute. The extraordinary crime created by this statute, the intending to commit an offense, is not to be extended by construction, and the common law remains unless it be clearly altered by the statute.

      Tho Massachusetts statute, 2 Mass. 128, respecting the posses-session of materials for forging, contains the following words: “ With the intent to use and employ the same, or to cause or permit the same to be used and employed in forging.”
    The words of section 29 of the Ohio statute were, erroneously, deemed equivalent to the above.
    There' is no doubt that the actual owner of tho forged notos could be indicted, the possession of his bailee being in his own possession. It is unnecessary for us to consider whether a person, who aids another to keep forged notes for the purpose of enabling him afterward to pass them, can be indicted under section 36 of the act, Swan’s Stat. 238, providing “ that if any person shall aid, abet, or procure any other person to commit any of the offenses by this act made criminal,” etc. It is sufficient for us to say that this is not an indictment under.that section-. See a ease on this section, Anderson v. State of Ohio, 7 Ohio, 250, pt. 2.
    It was necessary for the jury to be satisfied of the guilty intention to pass tho notes. In any point of view, the charge of the court must have been prejudicial to the accused, whether there was direct and positive evidence of the intention or not. In the former case it would be unnecessary for the jury to determine the credibility of the evidence; in the latter, it would bo unnecessary for them to consider whether certain inferences could properly be drawn.
    As to the indictment for possessing the plate:
    This is founded on section 31 of tho act, Swan’s Stat. 237: “ That if any person shall engrave any plate for striking or printing any ialso or counterfeit bank notes, knowing it to be designed for that purpose, or shall knowingly have iu his possession, and secretly keep any plate for the purpose aforesaid.”
    *The first question is, whether an intent to use the plate is necessary. In Sutton v. The State, 9 Ohio, 133, it was objected that tho indictment did not charge that the defendants had tho instruments with the intent to use them for counterfeiting — it only charged the secret possession. The court held the indictment to be good. This was a case under section 28 of the act-, Swan’s Stat. 236 ; the words are as follows : “ Or shall knowingly have in his possession, and secretly keep, any instrument for the purpose of counterfeiting any of the coins aforesaid.”
    If the court should bo of opinion that an intention to use the plate was not necessary, the plaintiff in error will be entitled to a discharge; for tho first count of the indictment is predicated upon that construction of tho statute, and the verdict of tho jury is, that the plaintiff in error is not guilty of that offense. The second ¿ount, upon which ho is convicted, charges him with the same offense, with this addition, that he intended to use the plate. This addition is mere surplusage, adding nothing to the criminality, if tho above construction of the statute be correct. Tho record, shows that tho plaintiff in error is not guilty of tho offense described in the statute, and that he is guilty of that offense, with an unimportant addition.
    If there be inconsistency in the verdict, the judgment founded thereon must be reversed. Hewson v. Saffin, 7 Ohio, 234, citing Stearns v. Barret, 1 Mason, 169, 170. Judge Story says: “If there be a material repugnancy in the verdict, it is not competent for the court to decide which is the truth of tho case-; and if it were otherwise, there is no authority to substitute its own opinion for that of the jury. In such case tho repugnancy will be fatal. A verdict which finds two inconsistent, material facts, is void, and can not b.e a foundation for a legal judgment.”
    If an intention to use the plate be necessary to constitute the offense, then the charge of the court, to the effect that the possession of the plate by the plaintiff in error, as bailee, with the intent to enable another to use it for such other person’s own benefit, is erroneous.
    *C. H. Brough, for the state :
    The bill of exceptions raises the questions in each case, first, whether any, and if any, what proof was necessary as to the existence of tho Bank of Tennessee, in the one case, and the Merchants and Mechanics’ Bank of Wheeling in the other. It also •excepts to the charge of the court, that possession by one or both of the parties charged, for another, and without guilty purpose, separately considered, would warrant a verdict ot conviction, if that other entertained guilty purpose, and defendant participated therein. I have not been able to see the assignment of error upon the record; but inasmuch as these two points were relied upon in the court below, I conclude that they will also be relied on here. Tho suggestions I have to make will apply mainly to the first case, but are also applicable to tho last.
    The essence of forgery, at common law, is the intent to defraud. Blackstone defines it to bo “the fraudulent making or alteration of a writing to the prejudice of another man’s right.” 4 Com. 247. It is elsewhere said to be “ a false making, malo animo, of any written instrument, for the purpose of fraud and deceit.” 2 East’s P. C. 182, 965; Rex v. Parkes and Brown, 2 Leach, 785.
    The second count in the case now under consideration charges the having in possession, etc., a plate, etc., for the purpose of striking and printing false and counterfeited bank notes, etc. Upon this count the charge of the court was made and the verdict rendered.
    Thus, then, the essence of the offense is precisely accordant with the definition of forgery at common law. The fraudulent making or alteration to the prejudice of another’s interest — the false making or alteration, malo animo, for the purpose of fraud and deceit, and the having in possession, etc., counterfeiting implements for the purpose of using them in striking and printing false and counterfeited bank notes, are each and all definitions, which make illegal and fraudulent intent and purpose the very gist of the offense.
    *This intent and purpose are construed in law to relate to
    the person or body corporate that may naturally be defrauded by the success of the imposition. Russ. & Ryan, 169; 34 Eng. Com. Law, 535. But the Bank of Tennessee, under this indictment, which does not allege the relation of the fraudulent purpose to any person or thing, in no degree comes into controversy. She is not <i party to the record as plaintiff, prosecutor, or subject of fraudulent intent, and has nothing to do with the proceedings in any, the remotest manner.
    It is urged, however, that in order that there may be a false or counterfeited instrument, there must be a genuine. In order that there may bo a plate for striking and printing false and counterfeited bank notes, there must be true and genuine bank notes, and a true and genuine plate for striking and printing them. This, with all deference, is denied, when put in such sweeping terms. The word “false” note excludes the idea of a genuine note, wholly and altogether. A “false ” note is one which is a complete fabrication — entirely unique, entirely baseless. Such a note may be made in, or the plate for striking it may be made to impress the “ likeness and similitude of the true and genuine bank notes of the Bank of .Tennessee, of the denomination of twenty dollars ;” and if this is matter of description, it must be proven ^ laid, as in this case it was proven. But in whatever likeness and similitude it may be made, even though wholly without likeness to any known original, and purporting to be on a bank that never had an existence, I submit that it would still be the subject matter of indictment and conviction.
    Nor is the position strictly true in regard to a “counterfeited” bank note plate, although that word seems to imply a genuine. Forgery may be predicated of an instrument the genuine of which is not in existence, and if it were, could have no effect or validity whatever — as of the fabrication of a will in the lifetime of the pretended testator. 10 State Tr. 183; 2 East’s P. C. 949; 1 Leach, 99; Fost. 116. The very definition of forgery, it has been held, decides this, “for it is the making of a false instrument with in-tent to deceive; and here the intention *to deceive was established by the jury, and the instrument purporting to be a will was clearly false.” Per Buller, J., in Coogan’s case, O. B. 1787, cited in 2 Russ. on Or. 340.
    It seems to bo material that the false instrument should carry on its faeo the semblance of that for which it was counterfeited, and should not bo illegal in its very frame. 2 East’s P. C. 948. And ono definition of forgery is given as the false making of an instrument which purports, on the face of it, to be good and valid for the purposes for which it was created, with a design to defraud. Per Eyre, Baron, in Jones and Palmer’s case, 1 Leach, 367. It is further hold that “it is of no consequence whether the counterfeited instrument be such as, if real, would bo effectual to the purpose it intends, so long as there is sufficient resemblance-to impose upon persons of ordinary observation, though persons of experience could not be deceived -by it.” 3 Ch. Cr. L. 1035; 2 Stark. Ev. 575, cited and approved by this court in Hess v. The State, 5 Ohio, 13.
    We deduce, therefore, that if the instrument, first, be not illegal in its very frame, or what is the converse of this ; second, purport on its face to be good and valid ; or even, third, if it have sufficient resemblance to a good and valid instrument to impose upon persons of ordinary observation, it is an instrument of which forgery can be predicated.
    And hence comes the rule, and the reason of the rule, that the forged or counterfeit instrument must bo set forth in the indictment. The reason for setting out the instrument is, that the court may see that it is one of those instruments the falsely making or knowingly uttering of which the law has said shall be considered forgery. 2 Leach, 597, 608. The forged instrument must be set out in order that the court may determine, advisedly, whether the fabrication of it constitutes the crime inhibited by the law. All the precedents aro so, and so are the authorities. McMillan v. The State, 5 Ohio, 269.
    The court, then, are to determine, from the face of the record, where the instrument must bo sot out, whether it is *“ illegal in its very frame,” or whether' it “ purports on its face to be good and valid.” If it be plainly illegal, the prosecution must fall to the ground. .This was Jonte’s case, decided upon the circuit in Hamilton by this court, at the term of 1844, West. L. Bop. for May, 1844, p. 360, whore an indictment for uttering and publishing as true and genuine, with intent to defraud the receiver, a two-dollar counterfeit note, of the State Bank of Indiana, was in question. A statute passed March 23, 1840, making it iliogal to pass, utter, publish, receive, or redeem notes of any foreign bank, under the denomination ol five dollars, was in force when this indictment was found. The court reversed the judgment and dis-' charged the prisoner, and for the reason that “ the bill is nugatory on its face; if genuine, it can not be made available but by a palpable violation of law by the'receiver, and it is no legal crime, under the laws of Ohio, to utter and publish, or attempt to pass such a bank note.” The authority most pointed to this conclusion was that of 21 Wend. 509, quoted by the court, where it is held to be “no felony to make or pass a counterfeit banknote when the circulation of genuine bank notes of the same denomination and description is prohibited by statute, and the instrument lay the intent to defraud the receiver of the bill.” The law forbids forgery or a fraudulent uttering to be predicated on an instrument nugatory on its very face, But, in either of these cases, had the indictment laid the intent to be to defraud the bank, it must still have been sustained, because the validity ol the genuine notes, for the purpose of enforcing their payment from the bank, would be recognized and protected.
    How widely different theso cases are from the one in hand need hardly be remarked. Notes clearly illegal upon their faces are sot forth in the one instance — a plate for counterfeiting notes as clearly legal upon their faces is sot forth in the other. Tho one genuine instrument is prohibited by law, and is therefore nugatory — the other is protected by law, and therefore valid.
    But it seems to be supposed that Jonte’s case has established a new rule, and made it necessary not merely, to predicate forgery *and its kindred crimes, of which the present is one, upon an instrument valid and legal on its face, but to prove affirmatively what it plainly imports upon its face, that it is valid and legal. In other words, that the charter of the bank must'be produced to prove its existence and power to issue notes of tho description mentioned. This, I submit, is wresting the decision and doing violence to the common sense of the matter.
    If tho plate wore for striking and printing “false” notes, as alleged in the indictment, the defense require an impossibility, nob to say an absurdity. There is no genuine to a “false” note, and consequently no bank — no charter of a bank. And to allege that such plate is had and kept for the purpose of “ striking and printing ‘false’ notes, in the likeness and similitude of true and genuine notes of the Bank of Tennessee,” imposes clearly no necessity such as insisted upon. In this aspect, it would seem, there is an end of all controversy.
    But to put the stress upon the phrase “counterfeited ” — that, it is urged, implies that there must bo a genuine. Not so ; it only implies that there may bo a genuine. The offense, it can not be too often repeated, consists in tho fraudulent purpose. To admit, however, the full length and strength of tho proposition, tho question recurs, how shall it be proven that there is a genuine, and this is the counterfeit presentment of it? I answer, by parol evidence. Such is tho whole current of authority.
    A precedent directly in point is the case of Commonwealth v. Smith, 6 Serg. & Rawle, 568. Tho prisoner was indicted and convicted for uttering and publishing, as true and genuine, a false, forged, and counterfeited bank note of tho Merchants’ Bank, New York, with intent to defraud Thomas Entrokin. Motion for a now trial upon the ground : 1. That there was no legal evidence of the existence of such bank; 2. That there was no legal evidence that tho note was a forged one; 3. That there was no legal evidence of tho identity of the note with that uttered, etc.
    Duncan, J., in delivering the opinion of the court in that case, says: “Had this bank been stated to have been a chartered *bank, or had the second count laid the act as done with an intention to defraud such bank, it might have been incumbent on the state to have proved the existence of the corporation, and this could only have been done by the production of the charter or act of incorporation. Was the note a false note? Was it published with an intention to defraud Thomas Entrekin? The crime consists in this. Whether there was such a bank chartered or unchartered, in rerum natura, or not, the passing a note under that description, as a true and genuine note, would be a forgery, for uttering a note in the name of a person who never had existed is a forgery. Ann Lewis’ case, Fost. 116; Bolland’s case, Leach, 83. Moreover, an instrument may be the subject of forgery, although, in fact, it should appear impossible for such an instrument forged to exist, provided the instrument purports on thn face to be good and valid as to the purposes for which it was in* tended to be made, as forging the will of a person living at thn time of the trial. There was then no necessity to provo the existence of the bank, more than the being of a person who purports to have made the. instrument, unless it was made with an intention to defraud such bank or such person. It is difficult to conceive of a case where such act, intending to defraud, whother in the name of a real or fictitious person, is not punishable as forgery. On the-trial, a doubt passed over my mind whother it was not necessary to provo the being of the bank by producing its charter, and the point was reserved. This was but the doubt of a moment. The law is clear that it is not necessary, as the indictment did not state this to be a chartered bank, nor, in the second count, was it laid to be done to their injury.”
    Equally conclusive is the later case of the People v. Smith Davis, 21 Wend. 309. The prisoner was indicted under section 16, 2 New York Rev. Stat. 674, which makes it a forgery in the second degree if any person shall have in his possession “any forged or counterfeit negotiable note, bill, draft, or other evidence oí debt, issued or purporting to have been issued by any corporation or company duly authorized *by the laws of the United States, or of this state, or of any other state, government, or country, with intent to pass.”
    The indictment, conformably to the statute, charged the prisoner that ho had in possession a certain false, forged, an.d counterfeited negotiable promissory note, commonly called a bank note, purporting to have been issued by a certain company and corporation, called Morris Canal and Banking Cdmpany, duly authorized for that purpose by the laws of the State of New Jersey, setting out tho note and alleging the iraudulent intent. At the trial, the counsel for the prisoner requested the recorder, who presided, to charge the jury, among other things, that the averment of the fact that the Morris Canal and Banking Company was a company duly authorized by the laws of New Jersey must be proved, as a matter of fact, by legal evidence of the act of incorporation, and that sdch proof not having been given, the prisoner was entitled to his acquittal. But the recorder instructed the jury that it was not necessary that the prosecution should produce and prove the-charter of the company, to which exception was taken, and the case carried up, by certiorari, to the Supreme Court. By the court, Nelson, C. J. “The most important question arising in this case is, whether the people were bound to prove, by the highest evidence, tho legal existence of the Morris Canal and Banking Company. It is conceded to have been unnecessary under the old act, 1 Eov. Stat. 405, 89, but it is insisted that the Eevised Statutes have changed the rule. Tho former provided that if any person shall have in his possession any forged or counterfeited promissory note for the payment of money, with tho intent to pass it and defraud, knowing the same to be counterfeit, he shall be guiltj of felony. Bank notes fall under tho general description, and become the subject of this offense. The Eevised Statutes have distinguished them from Other instruments of the kind by increasing the degree of punishment annexed; but this is the only object, or, I apprehend, effect, of tho change. To accomplish it, a separate section-became uecessary, in order to describe the paper thus singled out, the substance of which is as above recited.
    *The language here used to describe the bank paper, is now seized upon as indicating an intent to require legal proof of the existence.of the company. We do not so understand it. Even if the terms required proof of authority in the company to issue tho notes, construing the phrase, purporting to have been issued by a bank lawfully authorized fur’that purpose, in its strictest sense, still the kind or degree of proof is not prescribed; and the fact is left to be proved in the ordinary way under which, as heretofore practiced in like cases, the best evidence that might be furnished is not required. This is too well understood to make a reference to authorities necessary. Under the old law, the existence of the company, as well as the genuine or counterfeit signatures of the officers, as the case might bo, was frequently involved in the issue, and it must have been so in easps of altered notes; and yet secondary evidence, such as the acts and operations of the institution and the like, have been invariably received at tho oyer and terminer. But after full consideration, we are disposed to construe this section as not necessarily requiring the existence of a corporation or association from which the counterfeit bill or note purports to have been issued, in order to bring the case within it. It is sufficient if the bill purports on its face to have been issued by an authorized company, the term purporting in the section being intended by the legislature to qualify the whole of the succeeding clause.

      A fortiori, the production and proof of the charter is not necessary under our statute, which does not make the chartered existence of the bank a matter necessary to be alleged in the indictment; and this, be it remarked in passing, is the judgment of,the same court which decided the case in 21 Wendell, from which the rule laid down in Jonte’s case is drawn, and which decides all that Jonto’s case decides.
    The true question, in indictments for forgery and its kindred crimes, it thus clearly appears, is not what the instrument really is; whether it would turn out to be effectual, or even valid, if /genuine; but what does it purport to be? If legal upon its face, and purporting to be a true and genuine bank *note, it is the subject of indictment, because it is the means of fraud.
    Tho authorities to this point were very fully considered by Mr. Justice Cowen, in the People v. Stearns, 21 Wend. 409. This was an indictment for forgery, and for uttering a forged order, in the following words : “ To the Cashier of the Union Bank — Sir: Please to deliver to Messrs. Benton, Grcely and Edmonds, the plates of our bank, and receive them again on deposit, and oblige your obedient servant. G. C. Gwathmey, cashier. Bank of Kentucky, Louisville, December 20,1837,” with intent to injure and defraud the president, directors, and company of the Bank of Kentucky, and divers other persons to the jurors aforesaid unknown, against the form of tho statute, etc. The cashier of the Union Bank testified, at the trial mat he had no control over the plates referred to; that they were deposited for safe keeping -with the bank; and thence it was contended that the forged writing was ineffectual to the end sought, and so not the subject matter of an indictment for forgery. The court hold the foregoing principle to be law, referring, among numerous other authorities, to the case of Rex v. Goate, Ld. Raym. 737; that of Rex v. Crooke, 2 Str. 901, and the modern case of the People v. Galloway, 17 Wend. 542. The conclusion to which they arrive, is thus stated in a quotation from Mr. Hammond’s treatise upon .the law of forgery, viz: !l That.a writing shall, in its professed legal character, be a forgery, in spite of the non-existence of facts essential to that character. It is immaterial, then, to the crime of forgery, that the existence of such an instrument as it professef to bo, is, from extrinsic circumstances, cleai’ly impossible, since thn fictitious character which it wears upon the face of it is not influenced by matter's dehors, nor its opex-ation, thex'efore, as an engine of fraud, the only thing regarded, thereby affected.” 21 Wend. 417. The court also held it unnecessary to aver, in the indictment, that the Bank of Kentucky, the subject of the fraudulent intent, was a body corporate and politic.
    *It is clearly deducible, from all these cases, that if the instrument alleged to bo fox-ged have the likeness and appearance of a genuine one, so that fraud, the end in view, and the culpable disposition which the law seeks to discover and punish, may be effected, it is the subject-matter of fox’gexy. An instrument legal on its face, and bearing the semblance of genuineness to such a degree that persons of ordinary observation might be deceived, would be within the mischief, and within the law designed to remedy that mischief. Men may be deceived by a seemingly legal and genuine instrument, though if real, it could not be effectual; but they would have no reason to bo deceived by an instrument in its very frame illegal. A citizen of Ohio would bo bound to take notice of the existence of a law of this state prohibiting the passage of twenty-dollar notes of the Bank of Tennessee. But while, instead of prohibiting, the law protects the circulation of genuine notes of that denomination, of all foreign banks, it could not be supposed that a man of ordinary observation, being presented with a Tennessee bank note for §20, having all the verisimilitude of a legal and genuine bank note, would escape, unless by chance, from the infliction of fraud. And thus, while a clearly illegal bank note is not the subject of indictment, because no man in contemplation of law could be defrauded by it; on the other hand, a clearly legal bank note, upon its face, is the subject of indictment, and for the reason that a man may thereby be defrauded; and this constitutes the difference between Jonte’s case and that now under investigation.
    Had no proof whatever been offered as to the existence of the Bank of Tennessee, the case would still have been made out in this particular. If no such bank existed, notes of the denomination of §20, purporting to have been issued by it, would still be the subject of indictment, because they would be “false” notes; and the description in the indictment in that ease would be correct and sufficient, as being notes “in the likeness and similitude of true, and genuine bank notes of the Bank of Tennessee.” The argument for the prisoner on the trial below overlooked entirely the difference between ^counterfeit twenty-dollar notes of the Bank of Tennessee, and false and counterfeited bank notes “made in the likeness and similitude of true and genuine bank notes of the Bank of Tennessee, etc. I insist that each, and one as much as the other case, is contemplated by the statute under which this indictment is drawn. 17 Wend. 542; 21 Wend. 417, and cases there cited; Rex v. Deakins, 1 Sid. 142; Bolland’s case, Leach, 83; Whirley’s case, Russ. & R. 90; Marshall’s case, Ib. 75; Francis’ case, Ib. 209; East’s P. C., ch. 19, sec. 46; 2 Russ. on Crimes, 325.
    As to the nature and extent of proof which has been held sufficient, in all the cases, to make out the bad character of the instrument alleged to be forged, the rule is undoubtedly correctly laid down in Hess v. The State, 5 Ohio, 11. There is, indeed, no con-ti'ariety of precedent upon the point. The Commonwealth v. Carey, 2 Pick., is quoted as one of the leading American decisions, and in point of fact is so. The prisoner was there indicted for uttering and publishing, as true, to one John A. Newcomb, with intent the said John A. Newcomb then and there to injure and defraud, a certain false, forged, and counterfeited promissory note for the payment of money, to the following purport and effect, to wit: [setting forth a bank bill purporting to be issued by the Merchants’ Bank in Providence, Rhode Island.] At the trial, two witnesses were produced to prove that the note was lorged. One of them testified that he had very frequently received and paid notes purporting to be made by the Merchants’ Bank, and to be signed by the two persons whose names wore sot. as president and cashier, to the note in question, and had in that way become well acquainted with the signatures of those officers, and with the appearance of the genuine notc3 of that bank; that he never saw either of those persons, but that he once carried to the bank a number of the bills which he had received as genuine, and they were .all taken by the bank and paid for as genuine. The other witness testified to the like facts, excepting that he had never been at the bank. Both of those witnesses were officers in the Dedham Bank, or connected *with it in such a manner as to have frequent occasion to receive and pay the notes of other banks. They both testified that the note in question was forged and counterfeited. The defendant was convicted, but the judgment was respited for the opinion of the whole court on the question whether the evidence above stated was admissible and competent to prove that the note was forged and counterfeited. Simmons, for prisoner, contended that “the indictment, was defective in not alleging that the counterfeit bill was in the similitude of bills issued by any bank established in any of the United States. The existence of a corporation is. not to be presumed. It must appear that there is a bank having authority to issue true bills, before a person can be convicted of uttering counterfeit bills of such bank.” Morton, attorney-general, contra : “It is said that the existence of a bank duly established should have been averred in the indictment. But it is immaterial whether there was such a bank or not. The indictment alleges that the uttering of the forged note was with intent to defraud an individual, and that is sufficient.” Parker, C. J.: “It is said that there should have been an allegation that the bank was duly incorporated; but that was not necessary, as the indictment states a design to defraud an individual. In regard to the point that neither the president nor cashier of the bank was a witness, but that persons acquainted with their signatures, from seeing many bank bills, were admitted to prove the forgery, it is said that this was not the best evidence of which the nature of the case admitted. These witnesses were admitted, because the government has no authority to compel the attendance of witnesses living out of the state, and it is not to be expected that the officers of a bank will come here from courtesy and leave the business of the bank. Suppose the bank to be situated in one of the western states, and it would be impossible to procure the testimony required. It may bo said that- Tns is tho misfortune of the government; but when it is impossible for the government to obtain 'the best evidence, the court must consider what is the next best within its power to procure. It has been the practice hero to admit such evidence *as was received in tho case.” Motion in arrest of judgment overruled.
    In tho case of the United States v. Holtzclaw, 2 Hayw. 379, it was objected that none could speak as to the signatures of tho president and cashier save such as had seen them write, or corresponded with them. The court held otherwise, saying: “ These signatures are known to tho public, and persons who have been in the habit of distinguishing the genuine from the counterfeit signature, and are conversant in dealings for bank bills, are as well qualified to determine of their genuineness, as persons who, in private correspondence, have received letters from the person whose handwriting is in question. Moreover, it is determined by the skillful, whether a bill be genuine, not only by the signatures, but also by the face of the bill, and by the exact conformity of the devices which are used for the detection of counterfeits, to those in true bills. We are of opinion that the judgment of persons, well acquainted with bank paper, is sufficient evidence to determine whether tho one in question be genuine or not.” This opinion, it seems by what fell from the attorney-general, 3 Hawks, 395, was delivered by Marshall, C. J. Cowen and Hills’ Notes'to Phil. Ev. 1336, pt. 2.
    The proof in this case was, that such an institution as the Bank-of Tennessee existed, and did business as a legally chartered bank; that its notes of the denomination of twenty dollars passed currently in this state, and were reputed and taken to be good and. valid ; and that the plate in question was a counterieit plate, “designed and engraved” evidently “for the purpose of striking and printing false and counterfeited bank notes, in the likeness and similitude of true and genuine bank notes of the Bank of Tennessee, of the denomination of twenty dollars.” I submit, and insist that the case was abundantly made out in this respect, under the authorities, and that the charge of the court was correct.
    It is the presumption of law, that paper purporting to be bank notes, reputed to be such, circulating and performing all the offices of money, in the various transactions of business, *is a legally issued medium. Such paper, being in tho hands of tho citizens generally, taken for value, held as currency, and countenanced by the legislation of the state, which has made laws to protect it, and by the courts, which have upheld and enforced contracts founded upon it — such paper, I repeat, is the subject matter of forgery and counterfeiting. Upon its face, it is legal; in, and of itself, it furnishes prima facie proof upon which the prosecution may rest; and when, in addition, the proof sustains this prima facie case, appearing upon the record, as was the fact in the trial below, it would seem that nothing further could be demanded from the state.
    The rule doubtless is, that private corporations, and those of other states, being plaintiffs, must prove their corporate character by the highest evidence, upon nul tiel corporations, or non assumpsit pleaded. But it does not follow that the state, prosecuting in a criminal indictment, for a fraudulent purpose not relating to the bank, is equally bound. Palpably this is a non sequitur.

    In relation to the second point, it is only deemed necessary to present to the court the well-established rule, that, “ in general, if several unite in one common design to do some unlawful act, and each takes the part assigned him, though all are not actually present, yet all are present in the eye of the law.” Fost. 353, 450; 1 Hale’s P. C. 439; 2 Starkie’s Ev. 7, cited and approved in Hess v. The State, 5 Ohio, 11. An actual possession, without an independent guilty intention, but with a participation in the guilty intention of another, will charge the party as a criminal. A fortiori, where there is “a formed design, in the language of the court below, one criminal keeping, and the other using, or designing to use, the counterfeiting plate, and each of them having a common understanding with the other, both are guilty. For the possession of the one is the possession of the other, and the purpose of the one is that of the other.” Hess v. The State, 5 Ohio, 11.
    The offense of having in possession, etc., false and counterfeited bank notes, for the purpose of selling, bartering, and disposing of -^hem, is clearly defined in the case of Vanvalkenberg *v. The State, 11 Ohio, 404; and to that ease reference is made, as abundantly sustaining the charge of the court upon this point in the latter indictment.
    I have urged the argument on the first point more at length, because it was the assertion, by defendant’s counsel, of a new and plausible rule of practice. If it be the right rule, it is high time that it should be settled by a solemn adjudication of this court, and reduced to practice. I undertake to say that there is scarcely a convict in the state prison, now undergoing punishment for forgery and its kindred crimes, whose case has been tried by such a rule. In the common pleas of Hamilton, county, such testimony as that offered in this case has always been held sufficient. This, to be sure, if erroneous, furnishes no argument against the adoption of correct practice ; on the contrary, it shows more forcibly the necessity for the better rule. But I humbly submit that it supplies a reason for a close and careful survey of the question before it shall be solemnly determined that all our practice heretofore has been fraught with error and injustice.
    Mr. Corrt, in reply:
    The prosecuting attorney seems to have abandoned the conviction on the indictment for possessing the plate, as no argument is presented to the court in reply to that objection; but it is only suggested by the prosecuting attorney that, at the trial, it was supposed that the decision in Commonwealth v. Morse, 2 Mass. 128, was an authority in support of the proposition, that it was necessary to allege an intention to use the plate; whereas, it will be observed that the case quoted, has no application at all, for, as before stated, the Massachusetts statute contains the words “with the intent to use,” etc.
    Before proceeding to review the arguments of the prosecuting attorney, on the other points of the case, we beg to call the attention of the court to the fact, that these indictments expressly charge the existence of the banks referred to ; if they *had not charged either the existence, or the non-existence, we should have objected to the indictments themselves, instead of objecting to the evidence.
    The iudictment for possessing, etc., the notes, is not founded upon the latter part of section 29 of the act, Swan’s Stat. 236, and the indictment for possessing, etc., the plate, charges the existence of the Bank of Tennessee, and that the forged notes resembled the genuine notes of that bank.
    We admit that wEen a .man is indicted for uttering a note in the name of a person who never existed, there may be a conviction; but if the indictment alleges his existence, it must be proved.

      The cases referred to by the prosecutor are indictments upon statutes, which made it punishable to forge notes purporting tobo bank notes, whether, to use tho language of tho court, as quoted by tho prosecutor from 6 Serg. & R., “there was such a bank chartered, or unchartercd, in rerum natura, or not.” These cases, therefore, do not apply to tho present indictments.
    And the prosecutor, at tho trial, took upon himself to pi'ove that the banks referred to in the indictments, wore “institutions legally established by the laws of Yirginia,” etc. Whether those laws could be proved by reputation, is the question before tho court. On this point, we put tho obiter dictum in support of the affirmative, as quoted by the prosecutor from 21 Wendell, against tho obiter dictum, in support of the negative, as quoted by him from 6 Serg. & R., and submit that the question must bo decided upon principle. In the latter case, the court said, if it had boon incumbent on the state “ to prove the existence of the corporation, this could only be done by the production of the charter, or act of incorporation.”
    With regard to tho remaining point in this case, tho question is whether one who keeps notes as bailee for another, to enable such other person afterward to pass them himself, and on his own ex-elusive account, can be convicted upon an indictment ^charging- him with intent to pass them himself We shall contend that he can not be convicted upon such indictment.
    Wo will now examine the various arguments urged on behalf of the state, in detail.
    The prosecutor contends that an instrument wjaich appears on its faco to be good and valid, is an instrument of which forgery can be predicated. This we admit; but tho question is this : Is an instrument purporting to bo a note of the Merchants and Mechanics’ Bank of Wheeling, a note, “on its face good and valid?” Its validity depends on the laws of Yirginia, and the court, not being bound to notice those laws, could not pronounce the note to bo valid ; its validity had to be proved.. A note in the name of a fictitious person appears to be valid, since such instrument could legally be made by any person ; but a'note designed for currency, issued in tho name of an institution of another state, not known to be legally established by the laws, is not, on its face, valid. If there be no right to issue the notes, they are nullities.
    Tho prosecutor’s argument is, that everybody may assume that everything, in the shape of a foreign bank note, is legally issued' by a chartered institution, and, therefore, that an indictment maybe sustained for forging foreign notes, issued in the name of banks actually illegal. And, moreover, that such an indictment may be maintained upon the words of the first part of section 29 of the Ohio statute. We submit, on the contrary, that the word “ bank,” in that part of the section, can not be applied to illegal banks, whether domestic or foreign. We admit that the words apply to both foreign and domestic banks, and we submit that an indictment can not be sustained upon the words, for forging a note, which, if genuine, would actually be illegal. An illegal foreign note, does not appear on its face to be legal, although it may be-conjectured, or assumed, by those who are ignorant of the laws of the state, where it purports to have been issued, that it was legal. It will be observed that the indictments in the present case, charge-that the defendant intended to circulate the notes in Hamilton county, where unauthorized bank notes are worthless.
    *In Jonte’s case, the note was illegal on its face. ,The court did not, in that case, deny the rule which is, that the instrument must either appear on its face to be legal, or be proved to be-so. In the present case, the note was neither legal, nor illegal, on its faoe, except in the eyes of those who knew the laws of Virginia; they, and only they, could say whether it was legal, or illegal, on its face.
    In Rex v. Catapode, Russ. & R. 64, before cited, it was the opinion-of the judges that the notes of the British Linen Company, a Scotch, company, were not the subject of an indictment -for forgery, in England, as the company’s charter did not authorize them to issue notes. It could not properly be said of a person taking one of the-notes of the British Linen Company, that he had taken a note valid on its face ; the existence of a charter must have been assumed by any one who deemed the notes to be valid. The opinion of the-judges in that case, to which we called attention in our opening argument, is directly opposed to that of the prosecutor in the present case.
    The prosecutor suggests that in the indictment for possessing the plate, there is no allegation of the existence of the Bank of Tennessee, because the word false is in the indictment. The words are, “ false and counterfeited bank notes, in the likeness and similitude of true and genuine bank notes, of the Bank of Tennessee.”' 'This is an allegation of the existence of the Bank of Tennessee, and upon this indictment there could be no conviction if the bank ■did not exist as alleged; although the prosecutor says, “there is mo genuine to a 1 false,’ and consequently no bank, no charter of a bank.”
    The prosecutor contends that secondary evidence is admissible to prove that the banks were “ institutions legally established by the law.” He says, “a precedent directly in point is the case of Commonwealth v. Smith, 6 Serg. & R. 568.” The indictment was upon a statute which made it indictable to utter a note, purporting to be a bank note, and that, in the language of the court, “whether there was such a bank chartered or unctartered, in rerum natura, or not.” Now it can *not be pretended that it is immaterial on the trial of an indictment, under the first part •of section 29 of the Ohio statute, whether there is a bank in rerum matura, or not, for if there be no such bank, the allegation should correspond with the fact, and the indictment should be on the •latter part of the section.
    As it was immaterial in the case of the Commonwealth v. Smith, whether there was a bank or not in existence, of course it was unnecessary to prove any charter; but it is evidently the opinion of the court that, if the state had been called on to prove the existence of the bank, it could only have been done “ by the production of the charter, or act of incorporation.”
    Again, the prosecutor says: “Equally conclusive is the late •case of the People v. Davis, 21 Wend. 309.” The court held as follows: “ It is sufficient if the bill purports on its face to have been issued by an authorized company, the term purporting in •the section being intended by the legislature to qualify the whole of the succeeding clause.” The words of the act are, by any forged note, etc., “ issued, or purporting to have been issued, by .any corporation,” etc. Under this statute it was held to be immaterial whether there was a bank or not. But the court suggest that, if evidence had been necessary, “ still the kind, or degree of proof, is not prescribed, and the fact is left to be proved in the •ordinary way, under which, as heretofore practiced in like cases, the best evidence that might be furnished, is not required ;” and he adds, under the old law, “ secondary evidence, such as the acts .and operations of the institution, and the like, have been invariably received at the oyer and-terminer.” It is most likely that no objection was raised to the reception of the secondary evidence, and, of course, it was no part of the duty of the courts to •raise such objection.
    The notion that secondary evidence was admissible in such •cases, was not entertained for a moment, in the case of Rex v. McKeay, 1 Mood. C. C. 130, before cited. And it is impossible to urge even a plausible reason for such a flagrant violation of principle.
    *In the next case cited by the prosecutor, the People v. Stearns, 21 Wend. 409, an indictment for forgery, where the Bank •of Kentucky was mentioned in the indictment, it was held by the eourt, that although proof of the act creating the bank was a necessary part of the case, yet that it was unnecessary to allege the fact in the indictment. This we admit to be correct — we do not •contend that it is necessary in an indictment to state that the bank is a legal bank, and so forth — it is sufficient to use the words •of the statute; but we do maintain that it must either appear, or be made to appear to the conrt, that it is a legal institution, or the •case is not proved. In the People v. Davis, the legal existence of the supposed bank was immaterial; but in the People v. Stearns, it was material, as it is in the present case, and conse•quently we find it proved, not by secondary evidence, but according to the well-established principle. This case also proves that ■the instrument, in respect to which forgery can be predicated, must either appear on its face to be valuable, or there must be an •averment of the extrinsic circumstances showing the fact.
    The prosecutor, after observing that the law does not prohibit the circulation of foreign notes of the denomination of twenty •dollars, says : “The law protects the circulation of genuine notes ■of that denomination of all foreign banks. It could not be supposed that a man of ordinary observation, being presented with a Tennessee Bank note for twenty dollars, having all the verisimilitude of a legal and genuine bank note, would escape, unless by chance, from the infliction of fraud.” We suppose that the first inquiry of a man of ordinary discretion would probably be, is this the note of a legal institution ? And this inquiry will be made, whether the note be issued in Ohio or Yirginia, or any other state.
    Tho prosecutor refers to the Commonwealth v. Carey, 2 Pick. 47, where it was decided that the forgery of the signatures might be proved by persons who were acquainted with the handwriting. This is, no doubt, correct; the evidence was not of a secondary-degree. It was objected in that case that the existence of a bank, duly established, should have been ^averred in the indictment. The answer was, it was immaterial whether there was such a bank or not. The indictment charged the defendant with having had, in his possession, a forged promissory note, setting it out, and that it was uttered as a genuine note. It was not alleged to be a bank-note, and therefore proof of the existence of a bank was not required. The ease has no application to those-before the court; here the indictment refers to bank notes, not notes generally, which would include those of a bank, as well as those of private individuals.
    It is again urged by the prosecutor that the note of a foreign state is, upon its face, legal, and that the presumption of law is in favor of its legality. We deny that it is, upon its face, legal; it may be presumed to be legal by one man, and known not to be-legal by another. The courts of this state can not say that it is legal; the legality depends on the action of the legislature of the state where the currency is issued, and of that our courts can take no notice.
    It is suggested that the state is not bound to prove the existence of a corporation by the best evidence, when that fact is in issue on the trial of an indictment, although such evidence is necessary on the trial of a civil action. We can see no reason for the distinction ; whenever the fact is in issue, the affirmative must be proved by the best evidence.
    It is said by the prosecutor that, “in the court of common pleas of Hamilton county, such testimony as that offered in this-case has always been held sufficient.” That is doubtless so, for it was supposed before the decision in Jonto’s case, that it was perfectly immaterial whether the bank note on which an indictment for forgery was predicated, would, if genuine, be legal or not. We can not see the slightest reason for,saying that the omission of counsel to object to secondary evidence, has established a rule of practice which should be held paramount to the principles of the law.
    The prosecutor contends that the defendant was properly convicted as a principal, and he insists that where a bailee of forged notes knows that the owner intends to pass them, and *keeps-them for the purpose of enabling him to pass them, “the purpose ■of the one is that of the other.” We can not concur in this proposition. Two things are necessary to constitute the crime specified in the indictment respecting the possession of the notes, viz: possession, and an intention to pass. The bailee has the possession, but not the intention to pass — the owner, and he only, has that intention — he is to do it himself, and on his own exclusive account. If he actually carries his intention into effect, the bailee would, under the circumstances stated in the bill of exceptions, be indictable under section 36 of the act for the punishment of ■crimes. Swan’s Stat. 238, as an accessory, but not as principal. The rule on this subject is thus laid down in Arch. Crim. Pl. & Ev. 4; “And although an act be committed in pursuance of a previous •concerted plan between the parties, those who are not present, or so near as to be able to afford aid and assistance at the time when ■the offense was committed, are not principals, but accessories before the fact.”
    The prosecutor says: “ It is only deemed necessary to present to the court the well-established rule that, “ in general, if several ■unite in one common design to do some unlawful act, and each takes the part assigned him, though all are not actually present, yet all are present in the eye of the law.” This is explained .above; the parties if not actually present must be constructively present, that is, so near as to be able to afford aid and assistance, and therefore the bailee, in the case put, would not have been indictable as a principal, even if the owner of the notes had actually passed them, not being for that purpose the agent of the •other party. A fortiori, the bailee is not liable to be indicted as principal, where the owner of the notes has not actually passed them, but only had an intention so to do. We see nothing that militates against this view of the case in the decisions of this •court, quoted from 5 Ohio, 11, and 11 Ohio, 404, nor, indeed, anything on the subject. Where several, by concert, are privy to the uttering of a forged note, which is uttered by one only, in the absence of the others, he *only who uttSrs it is a principal.
    In Rex v. Soares, Russ. & R. 25, it was held that where it had been previously concerted between the three prisoners that one •should pass the note, and he passed it accordingly, the others were only accessories. And so in Rex v. Babcock, Russ. & R. 248, it was held that if several plan the uttering of a forged order for payment of money, and it is uttered accordingly by one, iu the absence of the others, the actual, utterer is the only one who-did “offer, dispose of, and put away,” within the meaning of the act, the rest being accessories. The same principle was followed in Rex v. Stewart, Russ. & R. 362; Rex v. Davis, Ib. 113; Rex v. Morris, Ib. 270.
    It was erroneously supposed on the trial that the legislature had, by section 29 of the act, made-as comprehensive a provision as that found in the Massachusetts statute, before cited, and the thirty-sixth clause of our statute was overlooked.
    In conclusion, we submit:
    1. That the conviction upon the indictment for keeping the plate is inconsistent and void.
    2. That the validity of the genuine notes of the so-called banks,, referred to in the indictments, was not proved.
    3. That the court erroneously construed the statute.
   Birchard, J.

The first indictment is for an offense punishable-by section 31 of the act for the punishment of crimes, which is-thus defined: “That if any person shall knowingly have in his-possession, and secretly keep any plate for the purpose of striking or printing any false or counterfeit bank notes, any person so offending shall,” etc. In the case of Sutton v. The State, 9 Ohio, 133, words precisely similar, in a case analogous, received a construction from this court, and it was held that an intent to use the-instrument for counterfeiting did not constitute an ingredient of the offense. There is no reason why these words should receive a different construction. The offense is complete where the person knowingly has the plate in his possession, and secretly keeps it. *The statute does not, and was not designed to throw upon the prosecutor the burden of proving the intention with which the plate is thus kept. No man can secretly and knowingly keep-any plate, engraved for the purpose of counterfeiting, and be innocent. It is claimed that under this construction, the plaintiff will be entitled to a discharge, because he was acquitted upon the-first count, which was framed upon such a construction of the statute that the finding of the jury is so inconsistent that no correct judgment could be entered upon it. The case of Hewson v. Saffin, 7 Ohio, 234, is cited in support of this position. That was-a case in replevin, where several pleas were put in, charging the property to belong to several persons, and the verdict was general, finding the truth of each plea. It was bad, and judgment was arrested, because from that verdict it was impossible for the court to say which of the persons was the owner of the property, and, from the nature of things, it could not be the property of each of the several persons at one and the same time. It is, for us,, difficult to see how that ease can have any just application to this. The verdict in this case is consistent and simple; it finds the defendant guilty, as charged in the second count. The verdict of not guilty, upon the first count, does not necessarily create any repugnancy in the verdict upon the second count. It may have been rendered, either because the prosecutor abandoned it, and allowed the verdict to be rendered, as he states, pro forma, under the momentary impression that the first count was insufficient. Be that as it may, it does not affect the case.

Did the court err in admitting the testimony objected to? This presents a question not free from difficulty, and yet the decision below is believed to be consistent with the uniform and oft repeated adjudications upon similar questions since the first organization of the state. The general rule is, that the best evidence must be given which the nature of the case admits of. The rule does not require that the strongest possible assurance of the point in question shall be given, but that no evidence shall be received of a character which presupposes that better and higher evidence is in the possession or power *of the party offering if. Were',these banks suitors in court, claiming the exercise of corporate rights, the offer by them of parol proof to maintain the right, unless it were a right acquired by prescription, would bo within the rule, for it would carry a presumption against them, that, if produced, their charters would show that the franchise in question was not conferred. Hence the rule, in Lewis v. Bank of Kentucky, 12 Ohio, 151: “ The corporators have full knowledge of their powers and capacity, and the means of establishing them.” When they exercise powers under the authority of a written charter, the non-production of that charter, and the attempt to supply it by parol evidence, is an indirect admission that the charter is insufficient, and that if they can not make out by parol a better one than exists on paper, they must fail. An analogous point was ruled by Lord Mansfield, in Roe v. Harvey, 7 Burr. 2484. No such implication necessarily arises when parol proof of the actual existence of a bank, in a sister state, is offered by a third party, and especially when offered by the public prosecutor, against a person charged with counterfeiting the bills or plates of such bank, because the act of counterfeiting implies, on his part, an admission that there is such bank, and that its genuine issues and plates are authorized, and of value. It is irrational to presume that men will take the trouble to counterfeit paper which is wholly worthless. All men are presumed to act according to their interest. No one could have any interest in forging valueless notes. Rules of law are never founded upon unnatural premises. On the contrary, it is, in general, safe to abolish a rule, when the sound reason upon which it was established has ceased to exist.

Admitting the proposition, that if the bank notes* in question were issued by an unauthorized bank, they would be nullities, and that, in that case, the plates might be secretly kept without incurring the penalty of the law, it does not follow that the evidence offered below was incompetent. The rules of presumptive evidence apply to corporations as well as individuals, and a charter ma.y be presumed from the long exercise of corporate rights. United States Bank v. Dandridge, 12 Wheat. 70. The *proof offered in this case showed that paper, of the description alleged to be counterfeited, was current in Ohio, and reputed to be the paper of legally established institutions of Virginia and Tennessee. Proof that their paper had obtained general circulation, and acquired universal confidence in a state like this, at a time when public attention is turned toward all corporations, both foreign and domestic, with eager and jealous scrutiny, certainly raised a violent presumption that the banks bad a legitimate existence, and lawfully possessed the powers which they had exercised. Coupled with the other legal presumption, that no one will counterfeit the valueless paper of an unauthorized bank, and we think the proof, unrebutted, sufficient for the prosecution. This made out a prima facie case, and was ample to cast upon the accused the burden of proving that the laws of Virginia and Tennessee restricted banking generally, or by these institutions in particular. The People v. Davis, 21 Wend. 309, is a case in point. Davis was indicted for having in his possession a counterfeit note of the Morris Canal and Banking Company, and the question was, whether the prosecution were bound to prove the existence of the company, by the production of the charter, and it was held they were not —that they might prove it in the ordinary way, and “that secondary evidence, such as the acts and operations of the company, and the like, had been invariably received at the oyer and terminer.” Is there any real danger in continuing this rule of evidence? It may be presumed that, if it were palpably mischievous, or, even by possibility, occasionally dangerous in practice, it would not have stood, without question, for forty years in Ohio, and in many of our sister states, for a still longer period. But this case even does not show that injustice has been caused by its application. We know, as a matter of fact, that each of the two institutions is legally constituted, and recognized as such, by the courts of Virginia and Tennessee. No actual wrong was committed by the decision complained of, because the proof offered established nothing that was untrue. It is attacked, not for the individual wrong it has wrought in this case, but for the public good, lest *peradventure, it may work harm hereafter to somebody, if allowed to stand as a precedent. In argument, it is admitted that parol proof has, hitherto, “always been held sufficient in similar •cases; but it is said, this is because counsel have not objected that it was secondary evidence, and that omissions of counsel should not be allowed to establish a rule of practice, in opposition to the paramount principles of law.” If the argument be sound that "this kind of evidence, when offered by a third party, does not raise the inference that higher evidence, in the possession of the party, is withheld, and if the act of forgery implies a confession, by the forger, that the instrument which it purports to imitate is valid, it can not well be said to be secondary evidence, because it does not fall within the reason that distinguishes the two classes •of proof. Is it always within the power of the prosecutor to prove the charters of banks incorporated by our sister states ? That they may be procured by taking sufficient pains and ample time, is not ■doubted. Certified copies of any legislative act may be had on application to the executives of the States of Virginia and Tennessee. But, under our constitution, an accused person is entitled to “ a speedy public trial.” He can not lawfully be detained, and committed for trial, without evidence. Nor is that evidence, on a •question of commitment, which is no evidence on a final trial. What, then, would be the effect of a rule that would indispensably ■require the production of the act incorporating a foreign and distinct bank in like cases? It would afford immunity to crime in innumerable cases. It would be as fatal to the success of many necessary prosecutions for counterfeiting, as a rule that would permit the forged signature of the officer of a bank to be disproved by him alone — a rule which has long since ceased to be recognized by the most enlightened tribunals of this country, and at this day is not law in England. Hess v. The State, 5 Ohio, 7; Commonwealth v. Cary, 2 Pick. 47. Some courts still consider the testimony of experts, touching the genuineness of the handwriting, as-secondary and inferior evidence to the testimony of the supposed writer; others avoid the general rule, by assuming that the testimony of *each is primary evidence, while all alike admit the evidence; and avoid the application of the rule which would exclude it. So, in cases of many public officers, proof of official character is permitted by parol, when third parties make the issue,- and even when the officer is a party. Thus, one may show himself to be a constable by proving his own acts in that capacity, and by general reputation. Johnson v. Stedman, 3 Ohio, 94. That he is a collector of taxes. Eldred v. Sexton, 5 Ohio, 215. The-reason of the decision in these cases is applicable hero. “It is more consistent with the ends of justice than to establish a contrary rule.” It is not conclusive evidence; but is so, prima facie, and unless contradicted, must be conclusive.” The character of abank, indeed, whose paper is in general circulation, performing the offices of money in a business community like ours, becomes as well known as the official character of a constable or tax-gatherer, who resides among us. The people in general are as well informed upon the subject as upon many matters of public history. There-is no county in the state where men of integrity can not be found' competent to state whether paper, the money in genei-al circulation among the people, is the paper of a real or unauthorized institution. The continuance of the rule that has obtained, is therefore-.perfectly consistent with the security of individual right; and,, while it subserves public convenience, the mere fact that it is at war with a technical rule, if it ’be so at war, furnishes no good-reason for changing the practice.

To determine the remaining point in the case, let us consider what is the precise effect of the instruction given to the jury.. Transpose the words stated, so as to give the charge according to-its legal effect, and it was this: That if the jury found that the-forged notes were in plaintiff’s possession, and kept by him with-tho formed design and guilty purpose to dispose of them for the-benefit of another, he might be convicted, but not if he was a mere bailee. This is the force of the words employed by the-court. The purpose of the unnamed individual is stated in the wprds of the statute. The jury was to be satisfied that the plaintiff entered into that purpose, or, in Mother words, made it his own.

It is objected that this would constitute him an accessory, under section 36 of the statute. This is not so. Section 36 provides a punishment for one who aids, abets, or procures another to commit the offense punished by section 29. That clause of the twenty-ninth, upon which this conviction was had, is in these words: “If any person shall be detected with a false and counterfeited note-in bis possession, for the purpose of selling, bartering, or disposing of the same.” Now, if Sasser was the accessory, whom did he abet or aid? He was not a mere bailee; if he had been, the jury, under the instructions, would have acquitted him. But he had possession of the notes and plate, and he had a formed design that they should be used and disposed of. The crime provided against was complete; between him and the associate there was guilt. Yet the associate, who it seems was to reap the fruits of the iniquity, was not detected with the paper or plate in his possession. It was not in the hands, even, of his bailee. Ho could not be guilty, for he was not detected with the paper. The objection amounts to this — that, under the clause above quoted, a felon can not be convicted unless he means to make profit from his crime. If generous enough to be guilty for the benefit of some one else, he is therefore innocent. This construction would be equivalent to interpolating into the statute, at the close of the-above quotation, the words, “ for his own exclusive uso and benefit.” We are not authorized to amend the statute in this way. The policy of the law is to punish all who are detected with counterfeit paper in their possession, with intent to sell, barter, or dispose of it, whether for their own benefit, or for the benefit of their friends or accomplices. Judgments affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    *The State of Ohio v. Frederick Engle and William Engle.
    Instructions given by the presiding judge, intended as the act of the court, and simultaneous with the annunciation of an adjournment, are the act of the court.
    A court may, in the exercise of a sound discretion, in a criminal case, direct the jury to seal up their verdict, and separate, and bring it in, in open court, should they agree when the court is not in session.
    This was an application for a writ of error to the common pleas ■of Hamilton county.
    The defendants wore indicted, tried, and convicted of manslaughter, in the court of common pleas for Hamilton county, at the October term, 1844.
    A bill of exceptions was taken and made part of the record, from which it appears that, on Saturday of the term, the cause ■having been submitted to the jury, at eleven o’clock, in the forenoon of the day, they retired to deliberate under the custody of the sheriff. The court remained in session till six o’clock in the evening, and then made proclamation of adjournment until Monday morning; and immediately before leaving the bench, the presiding judge directed the sheriff, if the jury agreed, to allow them to seal up their verdict and bring it into court on Monday morning, at nine o’clock. The jury agreed at seven •o’clock on Saturday, sealed up their verdict pursuant to directions, and separated until Monday, when they came into court to deliver their verdict. The defendants objected to the verdict because the jury had separated after agreeing to it. But this objection was overruled.
    It is assigned for error, that the court allowed the jury to separate before delivering their verdict, and that they received a sealed verdict.
    Hart and Pugh, for the motion:
    This case presents the question, whether a jury in a criminal case can, without an order in open court, or without the consent *of the prisoner, seal up their verdict and separate. It may well be doubted whether a court can make such an order without the prisoner’s consent — certain that they can not without his hearing. They cited and commented upon Sergeant’s case, 11 Ohio, 473, and urged that the privilege of polling a jury, after such separation, was impaired and rendered valueless. That-doubting jurors might be induced to sign the verdict, in order to-obtain a release, with intent to dissent when polled, and that by mixing with the multitude, and being beset by excited individuals,, their doubts would be removed, or they would yield to the sentiments of those around them. Suppose one of these jurors, upon being polled, had disagreed to the sealed verdict, could the court-have sent them back to their rooms to deliberate after the separation ? Or could they have received the sealed verdict, disregarding the dissent of the juror? We submit that they could do-neither the one nor the other. The case of Sutliff v. Gilbert, 8 Ohio, 405, is a great invasion upon the common law;' yet it does not touch this case. That was a civil case, and its principle was expressly decided in Sergeant’s case not to be applicable in a criminal case. In a civil suit, neither party has a right to poll a jury, bait a prisoner always has. The point of our objection is, that the prisoners lost any benefit which otherwise they would have secured by polling the jury, because of the sealed verdict- and separation. Besides, from the language of the court, in Sutliff v. Gilbert, it is doubtful whether a sealed verdict is not final, and none of the jurors can disagree to it. In this state we have departed widely enough from the common law; but, in all eases hitherto, the courts have been careful to preserve the substance, if not the form of justice. We ask a review and reversal of the-judgment below.
    A non allocatur was indorsed upon the record, signed by all the judges.
   Birchard, J.

The record shows that the jury were directed to seal up their verdict, after agreeing to it, by the presiding-judge, while all the members and officers of the court were ^present. True proclamation of adjournment had been made, but the instruction was immediately given. It was simultaneous with the act of adjournment, and may be regarded, as it. was intended to be, the act of the court. In Sergeant v. The State, 11 Ohio, 473, it is stated that, in a criminal caso, a sealed verdict. may be directed, but that the whole jury must be present when it. is delivered, in the presence of the prisoner, that they may be-> ¡polled if he desires it. In that case the point that is pressed to sustain this motion was not controverted by counsel; but it does not follow that the rule of law was incorrectly stated. In practice, it is often found necessary to the comfort of jurors, as well as convenient to the public, to commit, in matters of form, much to the sound discretion of the court. In the case at bar, the customs of the country and the religious feelings of community required the adjournment of the court over the Sabbath, unless there were good reasons why it should be kept open, and scruples -of conscience or public opinion disregarded. Cases may occur where public excitement runs so high as to create just cause to fear that improper influences may be brought to bear upon jurors if allowed to separate, and to justify a court in keeping them in confinement till the delivery of their verdict, or to justify the court in convening upon the Lord’s day to receive it and discharge them; but those cases are too seldom to warrant the refusal of .any discretion to the courts of criminal jurisdiction. Nor, in our day, is there any necessity of adhering with tenacity to all the dicta of ancient times. Many of the notions in vogue centuries ago, have yielded to better reason, founded upon more enlightened views and greater experience. In the infancy <?f the law, jurors wore too frequently treated with rigorous severity} often, as if they possessed not the feelings of men, and needed .not the comforts and sustenance requisite to sustain animal life, and not unfrequently, as if utterly destitute of moral fairness and .integrity. In form, some of the ancient barbarities of the law still continue. Thus the officer, on receiving charge of them, is sworn to conduct them to their room and not suffer them to separate, or to eat or drink, water *only excepted, or to speak to them, unless it be to ask if they are agreed, or by order of •court.

This is the form.; yet, in substance, we all know that the courts -of this day do not act upon the theory of starving a juror into a verdict, but, as a matter of course, direct nourishment and conveniences for rest, when nature requires the discretion to be exercised ; and a contrary practice would not be tolerated at this enlightened period. Nor has this relaxation from the severity of the •common law resulted to the prejudice of individual security or public justice. In Sutliff v. Gilbert, 8 Ohio, 480, it was held to be •no cause for setting aside the verdict of a jury, that, when agreed upon, it is sealed up and the jury separate, if afterward they come into court and report the sealed verdict. The opinion in this case is also given, that a change from this sealed verdict, after separation, could not be the foundation of a judgment, and that the verdict thus changed should be set aside. It seems to us that no good reason can be given for varying from these doctrines in a criminal case. If the jury are in court to deliver a sealed verdict, it allows the prisoner the benefit of polling them. If it was, when sealed, & verdict of guilty, there is no reason to suppose that it would have been otherwise had the court assembled to receive it immediately on their agreeing. "We are not authorized to suppose the ■case, put by counsel, that jurors will, in violation of their oaths, agree to a false verdict, in order to obtain a release, with the intention to dissent when polled. Such a supposition is totally inadmissible in argument, for it presupposes that such jurors are not ■honest men, and that they are capable of a most heinous offense. What, then, is the danger of allowing them to separate after agreeing to and sealing up the verdict? It can not prejudice the accused ; for if the sealed verdict is a verdict of acquittal, it can not be changed after the separation — if a verdict of guilty, it does not prejudice him, because, if one of the jurors, when polled, dissents, they can not be sent back to deliberate further, having been separated. So that the only chance of injury is a possible injury which may result to the prosecution.

*It is laid down in elementary writers, that the verdict of a jury, in criminal cases, is to be considered and delivered in with the same form as in civil eases, except that they can not give .a privy verdict, nor can they be discharged without giving a verdict but in cases of necessity. 4 Black. Com. 360. The reason why s, privy verdict could hot be taken was, that it deprived the prisoner of meeting the jury face to face and demanding of each his .separate verdict. The privy verdict was of no force unless afterward publicly affirmed bjr a public verdict in open court, wherein the jury might, if they pleased, vary from the privy verdict. “ So that,” says Blackstone, the privy verdict is a mere nullity, allowing time for the parties to tamper with the jury, and therefore -dangerous in practice and very seldom indulged in.” 3 Com. 337° The sealed verdict that remains locked in the breasts of the jurors, and concealed from the public and. the court by the wafer or wax, is not liable to many of the objections which existed against the verdict privily made public. It is not, like the latter, capable of being remodeled agreeably to the notions of a judge to whom it might be delivered. It can not be changed, when delivered in-public, from a verdict of acquittal to a verdict of guilty. It is not,, like that, “ a mere nullity,” but affords to the accused all the security that justice requires, and, as we conceive, fully preserves all his rights.

The possibility that jurors may dissent from a verdict of guilty when polled, and cast upon the state the burden of a new trial, furnishes a sufficient reason to make courts cautious in exercising' the discretion of allowing jurors to seal up their verdicts. And when the exercise of the discretion becomes necessary, it would be well, as a matter of prudent caution — lest, peradventure, some-portion of the jury might fail fully to comprehend the objects of placing their verdict under seal — to instruct them to make no disclosures concerning it, and to avoid all conversation relating to the issue until after their verdict shall have been rendered in public and they discharged from the office of a jury in the cause.-

Application refused.