Hobbs v. State

• Decision Date: 31 January 1846
• Citation: 9 Mo. 855
• Parties: HOBBS v. THE STATE.
• Court: Missouri Supreme Court

9 Mo. 855

HOBBS

v.THE STATE.

Supreme Court of Missouri.

January Term, 1846.

ERROR TO PIKE CIRCUIT COURT.

CARTY WELLS, for Plaintiff. 1. The counts are double, and repugnant, in charging the notes passed to be both forged and counterfeited. 2. They are repugnant describing different notes from those set out in the indictment. 3. They are repugnant in describing them as promissory notes, when those set out are not notes but drafts. 4. They are repugnant in describing the notes as having been issued by “The Northern Bank of Kentucky,” when those set out appear to have been issued the “The President, Directors,” &c., of said bank. 5. The counts are all defective in not averring that the corporation, issuing the notes, existed when the notes were issued or passed. 6. It is not alleged that said corporations ever had a legal existence--accepted the charter--ever issued such notes, or had power to do so.

STRINGFELLOW, for The State. To sustain the judgment of the Circuit Court the State insists: 1. That the indictment charges the offense in the words of the statute. Rev. Code, 1835, art 4, § 21, p. 187. 2. The words “forged” and “““counterfeited,” as used in the statute are synonymous 2 Chit. Crim. Law. 3. The instrument is properly described as a promissory note. 4. No venue is necessary to matters of mere description. Nor is it necessary in this indictment to lay venue to the act of forgery or counterfeiting. 1 Chit. Crim. Law, 199. In an indictment for receiving stolen goods, not necessary to lay venue to the stealing. It is not necessary on the 21st section to allege that the notes were passed for any consideration.

MCBRIDE, J.

Hobbs was indicted by the grand jury of Pike county, for passing counterfeit bank bills, and found guilty. The indictment contains nine counts. The first count charges, “that James B. Hobbs, on, &c., at, &c., a certain forged and counterfeit ten dollar promissory note, purporting to be made and issued by the Northern Bank of Kentucky, incorporated under the laws of the State of Kentucky, which said forged and counterfeit note is as follows, that is to say:

No. 785, A

No. 785, A.

10

10

The President, Directors and Company of the Northern Bank of Kentucky, will pay on demand to W. Coles, or bearer, at Richmond, ten dollars.

Lexington, July 20, 1842.

M. T. SCOTT, Cash'r.

JNO. TILFORD, Pres't.

Then and there feloniously did pass, utter and publish as true, to one Joseph Pugh, with the intent then and there, him, the said Pugh, to defraud, he, the said James B. Hobbs, at the time he so passed, uttered and published said forged and counterfeited promissory note, then and there well knowing the same to be forged and counterfeited, contrary, &c. The second count is like the first, with the exception that it charges that the defendant did “pass,” as true, &c. The third count charges that the defendant did “utter and publish” as true, &c. The fourth count alleges the forged and counterfeited promissory note to have been “issued by the President, Directors and Company of the Northern Bank of, &c., and that the defendant did pass, utter and publish as true,” &c. The other counts charge the passing, &c., of promissory notes on the State Bank of Indiana, and are framed similarly to those heretofore referred to.

After the finding of the jury, the defendant filed his motion in arrest of judgment, which being overruled, he has brought the case to this court by writ of error. The errors assigned are: 1. The counts are double, and repugnant in charging the notes passed to be both forged and counterfeited. 2. They are repugnant in describing different notes from those set out in the indictment. 3 They are repugnant in describing them as promissory notes, when those set out are not notes but drafts. 4. They are repugnant in describing the notes as having been issued by the Northern Bank of Kentucky, when those set out appear to have been issued by the President, Directors and Company of said bank. 5. The counts are all defective in not averring that the corporations issuing the notes, existed when the notes were issued or passed. 6. It is not alleged that said corporation ever had a legal existence--accepted its charter--ever issued such notes, or had power to do so.

The answer to the first objection is, that the indictment pursues the language of the statute. See Rev. Code, 1835, p. 187, § 21. “Every person who, with intent to defraud, shall pass, utter or publish, or attempt to pass, utter or publish, as true, any forged, counterfeited, or falsely uttered instrument, or writing,” &c. The words “forged” and “counterfeited,” as used in the statute, are synonymous, and when used in the same connection in all the statutes and forms, where they occur, are so used and regarded, although there is a shade of difference in their signification. See the form of an indictment at common law for forging a fieri facias, Arch. C. P. 306. In Barbour's C. T. 117, it is said, “by a decision of the Supreme Court of this State (N. Y.), made since the passage of the revised statute, it is settled that in an indictment for forging a check on a bank, it is sufficient to allege that the prisoner falsely made, forged and counterfeited a certain check, with intention to defraud,” &c. In 8 Mass. R. 63, Brown v. The Commonwealth, the indictment charged the defendant with possessing, with the unlawful intention which constitutes the offense, “twenty false, forged and counterfeit bank bills or promissory notes, purporting,” &c. In the case of The Commonwealth v. Houghton, 8 Mass R. 107, the defendant was indicted for, “that at, &c., on, &c., he had in his custody and possession more than, viz: twenty-five...