Malinda Fox v. the State of Ohio

• Citation: 46 U.S. 410,12 L.Ed. 213,5 How. 410
• Parties: MALINDA FOX v. THE STATE OF OHIO
• Decision Date: 01 January 1847
• Court: United States Supreme Court

46 U.S. 410 5 How. 410 12 L.Ed. 213 MALINDA FOX v. THE STATE OF OHIO. January Term, 1847

THIS case was brought up by a writ of error, issued under the twenty-fifth section of the Judiciary Act, from the Supreme Court of Ohio.

It was an indictment, in the State court, against Malinda Fox, for 'passing and uttering a certain piece of false, base, and counterfeit coin, forged and counterfeited to the likeness and similitude of the good and legal silver coin currently passing in the State of Ohio, called a dollar.'

Being convicted, the case was taken by her, upon writ of error, to the court in bank of the State, its highest judicial tribunal; and at the December term, 1842, of that court, the judgment of the Common Pleas was affirmed.

From this decision of the court in bank the plaintiff in error brought the case to this court, and claimed a reversal of the judgment, on the ground that the courts of that State had no jurisdiction of the offence charged in the indictment, but that the jurisdiction belongs exclusively to the courts of the United States.

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The cause was argued by Mr. Convers, for the plaintiff in error, and Mr. Stanberry (Attorney-General of Ohio), for the State.

The opening and closing arguments of Mr. Convers, for the plaintiff in error, have been consolidated, and will be found after that of Mr. Stanberry.

Mr. Stanberry made the following points:——

1. That the offence charged in the indictment is not for uttering any counterfeit of the coin of the United States, or of any foreign coin regulated by Congress, or made current money of the United States.

2. That, if it should be held that the coin so passed was a counterfeit of any of the current coin of the United States, that for the mere offence of uttering there is no jurisdiction in the courts of the United States, but it exclusively belongs to the courts of the State. 1 East, P. C., 162; 1 Hale, P. C., 19, 188; 1 Hawk. P. C., 20.

3. That if not exclusive, the jurisdiction of State courts is concurrent with those of the United States. Federalist, No. 32; Houston v. Moore, 5 Wheat., 1, 31; State v. Antonio, 3 Wheel. Cr. Cas., 508; State v. Tutt, 2 Bail (S. C.), 44; Chess v. State, 1 Blackf. (Ind.), 198; White v. Commonwealth, 4 Binn. (Pa.), 418.

1. The first question which arises upon the transcript is as to the

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character of the piece of coin which the plaintiff in error has been convicted of passing. It seems to be taken for granted by her counsel, that it was a counterfeit of some piece of coin which, under the laws of Congress, has been made current money of the United States. The only description given is, that it was a piece of coin in the similitude of the good and legal silver coin, currently passing in the State of Ohio, called a dollar.

The silver coins which have been made current by acts of Congress are the following:——

All silver coins of the coinage of the mint of the United States; Spanish milled dollars; Spanish pillar dollars; French crowns; the five-franc pieces; and the dollars of Mexico, Peru, and Bolivia.

The Congress of the United States, in the exercise of the power to coin money and regulate its value and the value of foreign coin, has not seen fit to regulate the value of any other foreign silver coins than those above mentioned. The power to punish offences respecting the coin, vested in Congress by the sixth clause of the eighth section of the first article of the constitution of the United States, is limited to the counterfeiting of the current coin of the United States. No coin can be said to be current coin of the United States but that which has been made so by actual coinage at the mint, or by some act of Congress regulating its value.

Here, then, is a power given, in the most unlimited terms, to regulate the value of all foreign coins, and to make them current money of the Union; and a further power to punish the counterfeiting of the coin so made current. Obviously the power of punishment, in other words, the jurisdiction over offences against the coin, is limited to the currency so established. The power to punish arises out of the exercise of the power to regulate. Does it then appear that the piece of coin, which the plaintiff in error was convicted of passing, was a counterfeit of any of the coins so made current by Congress?

There is no term of the description given of this coin which can be relied upon as bringing it within the coin made current by Congress, except the words 'good and legal silver coin.' Now, if that description of the coin can only refer to the national currency, and could only be satisfied by proof that the counterfeit dollar was in the similitude of an American, Mexican, Peruvian, or Bolivian dollar, all which are established by act of Congress, then it would be sufficient.

No such limited signification can be given to these words. If the averment was 'good and legal silver coin of the United States,' it would be different; but it is 'good and legal silver coin, currently passing in the State of Ohio.'

But there is a certain test of the meaning of this descriptive allegation, and that is, to inquire whether a conviction under this

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indictment could have been had, upon proof of passing a counterfeit in the similitude of any of the foreign silver coins of the denomination of a dollar not made part of our national currency by act of Congress.

In order to this, we must look at the statute of Ohio creating the offence, as well as at the indictment.

The words of the statute are:—'That if any person shall counterfeit any of the coins of gold, silver, or copper, currently passing in this State, or shall alter or put off counterfeit coin or coins, knowing them to be such,' &c. 29 Ohio St., 136.

There can be no question that this provision covers every description of coin, domestic and foreign, whether made current by act of Congress or not. Take, then, the case of passing a counterfeit of a German dollar, which is a description of coin not made current by act of Congress, and what difficulty would be in the way of a conviction under this statute and indictment.

It may be claimed, by the plaintiff in error, that the words 'good and legal silver coin currently passing in the State of Ohio,' though not used in the statute, yet make a descriptive averment of some coin made legal or current by act of Congress. If that be so, there is no question that the averment, though unnecessarily made, must be provided, upon the familiar doctrine that all merely descriptive allegations become material.

Now, these words, 'good and legal coin,' are not found in that clause of the constitution which gives to Congress the power to regulate the coin, or in the other clause which provides for the punishment of counterfeiting; but the descriptive words there used are 'current coin of the United States.' These last are the operative words which distinguish the national coin from the mass of the currency.

It may be argued, that legal coin can only mean current coin of the United States, as none other is legal. That is true in one sense. If we were now engaged in the construction of a contract to pay money, in which the payment was stipulated to be made in good and legal coin, the meaning undoubtedly would be current coin of the United States; for it is only that sort of coin which can discharge a contract to pay money, or which is a legal tender in payment. But we are not now looking for the meaning of these words as used in a contract, but in an indictment for passing counterfeit money. Coin, which may not be legal for the payment of a debt, may yet be legal as a currency; although not regulated in value by act of Congress, it is yet lawful as a circulation. It seems to me there can be no question that the latter is the true sense in which these words are used in the indictment, especially when we take the whole sentence,—'good and legal silver coin currently passing in the State of Ohio'; and that, instead of being descriptive of a particular coinage, they are merely descriptive of the genuineness

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and lawfulness of the original which has been counterfeited, and are put in opposition to the other words used in the indictment, 'forged, base, and counterfeit,'—to express exactly the contrary.

2. The constitution authorizes Congress 'to provide for the punishment of counterfeiting the securities and current coin of the United States.'

The plaintiff in error has been convicted of passing a counterfeit dollar. I claim, that though it be admitted this coin was of the current coin of the United States, yet the offence of uttering or passing it is not an offence cognizable by the United States.

This leads to a consideration of the meaning of the term 'counterfeiting,' as used in the constitution. It is claimed for the plaintiff in error that it is a generic term, and includes every offence in relation to the coin.

This clause does not carry with it a power to define and punish the offence, as is the case in the clause in relation to piracies and felonies committed on the high seas, but is strictly limited to the punishment of an offence named and designated. The consequence is, that, in the absence of any grant of power to define or enlarge, the jurisdiction of the United States is to be confined to the very offence so named,—the offence of counterfeiting. What, then, is the meaning of this term, as used in the constitution? It is nowhere defined in the constitution itself, so that we are to find its meaning elsewhere. At the time the constitution was framed, the offence of counterfeiting was well known and certainly defined; and in that country from which it was adopted, it stood among the class of crimes which amounted to high treason.

It was never understood that the offence of counterfeiting the coin of England, and the offence of passing coin so counterfeited, were the same. On the contrary, they were carefully distinguished...