Commonwealth v. Searle

• Decision Date: 21 March 1810
• Citation: 4 Am.Dec. 446,2 Binn. 332
• Parties: The Commonwealth v. SEARLE.
• Court: Pennsylvania Supreme Court

2 Binn. 332

4 Am.Dec. 446

The Commonwealth v. SEARLE.

Supreme Court of Pennsylvania.

March 21, 1810

The publishing a forged note of hand, or any other writing of a private nature, though not under seal, as a genuine note or writing, with intent to defraud, is indictable at common law.

The publishing a counterfeit note of the Bank of North America with intent to defraud, is indictable at common law, and is punishable by imprisonment at hard labour under the acts of 5th April 1790, and 4th April 1807.

Where a statute creates, or expressly prohibits an offence, and inflicts a punishment, the statute punishment cannot be inflicted unless the indictment concludes contra formam statuti. Otherwise, where the statute only inflicts a punishment on that which was an offence before.

In an indictment for forging a bank note, it is not necessary to set forth the ornamental parts of the bill, as the devices mottos, & c.

THE defendant was indicted at an ^[a1] Oyer and Terminer holden by the judges of the Supreme Court after the December term, for forging, and for uttering and publishing as true, a counterfeit ten dollar note of the Bank of North America.

The indictment contained two counts. The 1st was for forging, and procuring to be forged, the note in question. The 2d charged that " the said John Searle on the same day and year aforesaid at the county aforesaid, with force and arms having in his custody and possession a certain other false forged and counterfeited paper writing, partly written and partly printed, purporting to be a true and genuine promissory note for the payment of money, called a bank note of the Bank of North America, and purporting to be signed by J. Nixon president, and also by the cashier of the said bank, the tenor of which said last mentioned false forged and conterfeited paper writing, partly written and partly printed, purporting to be a true and genuine promissory note for the payment of money, called a bank note of the Bank of North America, is as follows, that is to say

X I promise to pay to D. Catwell or bearer on demand ten dollars. Philadelphia 26 of February 1808 n 2467 e 614. For the President Directors and Company of the Bank of North America. 10

10 H. Drinker j Cash J. Nixon Present. X

falsely illegally knowingly fraudulently and deceitfully did utter and publish as a true and genuine promissory note for the payment of money, called a bank note of the Bank of North America, the said last mentioned false forged and counterfeited paper writing, partly written and partly printed, purporting to be a true and genuine promissory note for the payment of money, called a bank note of the Bank of North America, he the said John Searle, at the time of uttering and publishing the same, then and there well knowing the same to be false forged and counterfeited, with intent to defraud Joseph Simmons, to the evil example of others in like case offending, and against the peace and dignity of the commonwealth of Pennsylvania. "

The defendant was found not guilty upon the first, and guilty upon the second count; and his counsel moved in arrest of judgment for the following reasons:

1. Because the uttering a note of the Bank of North America knowing the same to be counterfeit, is not indictable at common law, but is an offence created by act of assembly, and therefore the indictment should have concluded " against the form of the act of assembly." Or if it is an offence at common law, still, as it is punishable only by act of assembly, no punishment can be inflicted, because the indictment does not conclude against the form of the act & c.

2. Because the note as described in the indictment differs from the note proved to be uttered, as the words " ten" and " cavendo tutus, " ^[a1] which were in the note proved to be uttered, are not mentioned in the description of the note laid in the indictment.

3. Because the indictment states that the note purported to be signed by the cashier, without naming him, and the note produced is signed by H. Drinker j Cash.

Phillips for the defendant.

1. Publishing a counterfeit note is no offence at common law. It was a long time questionable, whether even the forgery of a private unsealed instrument was indictable at common law except as a cheat; but although that point may have been settled, the uttering of such a forgery stands upon a different ground; the former being distinct from every other offence, and consisting in the fabrication of the instrument the latter being merely an attempt at cheating, by a false token. The statute of 2 Geo. 2. ch. 25. was the first that punished the uttering of a forged note as a felony; and it recited in the preamble that it was found necessary to remedy the defects in the existing law. So, the common law not being adequate to the mischief, the legislature by an act of the 18th March 1782, made the uttering forged notes of the Bank of North America a felony. This act was repealed on the 13th September 1785, when the incorporation of that bank was overthrown; and when by the law of 17th March 1787, 2 St. Laws 499, the corporation was revived, nothing was said as to the revival of the provision against forging and uttering forged notes of that bank, and of course it was at an end. The first act for the reform of the penal code, passed the 5th April 1790, 2 St. Laws 801, contains no punishment for this offence; but in the act of 22d April 1794, 3 St. Laws 600, it is declared that if any person shall be concerned in printing, signing, or passing a counterfeit note of this bank, he shall be punished by fine and imprisonment at hard labour. It is this act which creates the offence for which the defendant is indicted; and therefore the indictment is bad, as it does not conclude contra formam statuti. If an offence be newly enacted or made an offence of a higher nature, the indictment must conclude contra formam statuti. 2 Hale's H. P. C. 189. But if this is an offence at common law indictable in this form, no punishment can be inflicted; not the common law punishment, because where there is a punishment by act of assembly, the common law punishment is taken away by the act of 21st March 1806, 7 St. Laws 569; nor the punishment by act of assembly, because not concluding contra formam statuti, it stands as an indictment at common law, and can only receive the penalty that the common law inflicts. 2 Hale's H. P. C. 191. The precedents conclude against the form of the statute. 2 East Cr. Law 874.

2 and 3. The variance between the note laid and the note proved is fatal. The utmost strictness is required in setting out the tenor. The words " purporting to be a bank note," imply that the paper on its face has the appearance of a bank note; The King v. Jones ^[a]; and the instrument charged to be forged, must be set out. The King v. Lyon ^[b]. The instrument here charged to be forged, omits certain words and devices contained in the genuine bill, so that it does not purport as is alleged, and it is not completely set out. A variance in the name, as King instead of Ring, defeats the indictment. The King v. Reading ^[a]. So an indictment for forging a note purporting to be signed by Christopher Olier, is not supported by a note with the signature of C. Olier. The King v. Reeves ^[b]. The King v. Lee ^[c].

Gibson and Lewis for the commonwealth. The 2d and 3d exceptions have no effect on a motion in arrest of judgment; they would have been urged with more propriety as objections to evidence, or upon a motion for a new trial. The 2d however is founded upon the mistake that the ornamental devices upon the bill are parts which it is material to set out. Every part of the bill that was evidence of contract, is set out in words and figures, and that is all that is requisite. Commonwealth v. Bailey ^[d], Commonwealth v. Stevens ^[e]. The 3d is also a mistake. The purport of an instrument is its meaning, on its face; certainly the counterfeit note purported to be signed by the cashier. When the tenor of the bill is set out, then the signature is given.

[The court here intimated their opinion, that none of the exceptions, save the first, were applicable to a motion in arrest of judgment, but to a motion for a new trial, upon the ground of the verdict's being against evidence. At the same time, they expressed their concurrence with both the cases from the Massachusetts Reports, and that it was not necessary to set forth the ornamental parts of the bill, the devices or mottos.]

The 1st exception alone is proper in arrest of judgment; but it is founded upon a false position, that the publishing of the note was not indictable at common law. Forging a receipt for goods which the defendant is bound to deliver, is indictable at common law. The King v. Ward ^[f]. This case decides that the forgery of any writing by which a person might be prejudiced, although in fact no one was prejudiced, was indictable at common law as a forgery; and the publication of the forgery with intent to defraud, though in fact no person was defrauded, stands upon the same principle. 2 East's Cr. L. 972. s. 51. There is not an act of assembly in force, in which this is made an offence at all, or where it is made an offence of a higher nature than it was at common law, or where it is prohibited; the punishment alone is prescribed, and that is lighter than it was at common law. The 4th section of the act of 5th April 1790, enacts that every person convicted of any offence not capital, for which by the laws in force before the act of 15th September 1786 burning in the hand, cutting off the ears, nailing the ear to the pillory, placing in and upon the pillory, whipping or imprisonment for life, was or might be inflicted, shall instead of that punishment, be fined...