Townsend v. People of State

• Citation: 4 Ill. 326,1841 WL 3325,3 Scam. 326
• Parties: Luther Townsend, plaintiff in error,v.The People of the State of Illinois, defendants in error.
• Decision Date: 31 December 1841
• Court: Supreme Court of Illinois

3 Scam. 326

4 Ill. 326

1841 WL 3325 (Ill.)

Luther Townsend, plaintiff in error,

v.The People of the State of Illinois, defendants in error.

Supreme Court of Illinois.

December Term, 1841.

Error to Cook.

In an indictment against a prisoner, for having in his possession forged bank bills, etc., with intent to pass the same as true and genuine, it is unnecessary to allege that the bills are for the payment of money.

The term bank bills has a definite and certain meaning. It is a written promise on the part of the bank, to pay to the bearer a certain sum of money on demand.

An objection to the sufficiency of an indictment, because a certain fact appears by way of recital, and not by positive averment, goes to the manner of pleading the fact, and not to the fact itself, and therefore should be taken advantage of upon a motion to quash the indictment, before trial. ^a

Where there are three good counts in an indictment, and a general verdict of guilty, the judgment must stand, even if the fourth count should be adjudged bad. ^b

The plaintiff in error was tried at the September term, 1841, of the Cook Circuit Court, before the Hon. Theophilus W. Smith and a jury. He was found guilty, and sentenced to be confined in the penitentiary for four years. A motion was made in arrest of judgment, and overruled.

Justin Butterfield, for the plaintiff in error:

The indictment is defective. There is no averment in any count, that the bills were for the payment of money. The recital of the fact is not sufficient; an express averment is necessary: Gould's Plead., 63-65. The fourth and last count is bad in all respects.

I wish to raise the question, where there is one bad count, and several good ones, whether the indictment can be sustained.

At common law, in civil actions, where there is a defective count, judgment will be arrested. It would be so here, but for our statute. That statute does not apply to criminal cases. He cited Curtis v. The People, Breese, 197; 1 Chit. Crim. Law, 249.J. Lamborn, attorney-general, for the defendants in error:

Bank bills are always payable in money, and no averment of that fact is necessary.

Promissory notes are not always payable in money, and, therefore, in an indictment for having in possession a forged promissory note, such an averment is necessary.

After verdict, the plaintiff can not object that one of several counts is defective. The real merits are not affected by these objections, and they can not be sustained after verdict:

DOUGLASS, Justice, delivered the opinion of the court.

Luther Townsend was indicted at the September term, 1841, of the Cook Circuit Court, for having in his possession, with intent to pass, certain forged bank notes. A trial was had, and he was convicted, and sentenced to the penitentiary for four years. The indictment contains four counts, the first of which is as follows:

“The grand jurors chosen, selected, and sworn, in and for the county of Cook, in the name and by the authority of the people of the state of Illinois, upon their oaths, present, that Luther Townsend, late of the county of Cook, aforesaid, laborer, on the twenty-ninth day of June, in the year of our Lord one thousand eight hundred and forty-one, at Chicago, in the county of Cook, aforesaid, feloniously, and without lawful excuse, had in his custody and possession, with intent to utter and pass the same as true and genuine, divers forged bank notes, commonly called bank bills, to wit, one forged bank bill, or note, purporting to have been issued by the Bank of Illinois, with intention to defraud the said Bank of Illinois, which said forged bank bill, or note, is in the words and figures following, to wit: [Here follows an exact copy of the forged note, which is in the usual form of a genuine note on the Bank of Illinois.] he, the said Luther Townsend, then and there, well knowing the said bank notes, or bills, to be forged, contrary to the form of the statute in such case made and provided, and against the peace of the people of the state of Illinois, and their dignity.”

The second count was the same as the first, except it charged that the forged bank note purported to have been issued by the Bank of Lyons, in the state of New York.

The third count only varies from the first in this, that the forged bank note set out in that count purported to have been issued by the Tanners' Bank of Catskill, in the state of New York.

The fourth count differs from the first in this only, that it omits to set out the forged bank notes, or to state by what bank, or banks, they purported to have been issued; and, as an excuse for this omission, charges the prisoner with having so disfigured and mutilated said notes, after his arrest, as to render a minute and accurate description of them impossible.

The only error assigned is the insufficiency of the indictment, for the following reasons:

First. Neither of the counts in the indictment charges facts sufficient to constitute the offense in pursuance of the 76th section of the Criminal Code;

Second. There is no allegation...