White v. Commonwealth

• Decision Date: 28 March 1812
• Parties: WHITE v. The Commonwealth.
• Court: Pennsylvania Supreme Court

4 Binn. 418

WHITE v. The Commonwealth.

Supreme Court of Pennsylvania.

March 28, 1812

IN ERROR.

Notwithstanding the expiration of the corporate powers of the late Bank of the United States, it is still an indictable offence, and punishable within the act of 22d April 1794, to pass a counterfeit note of that bank knowing it to be such; and any forged note, counterfeiting a genuine note of that bank issued during the existence of its corporate powers, is a counterfeit note of that bank.

THIS was a writ of error to the Quarter Sessions of Chester county, to bring up the record of an indictment and conviction of the plaintiff in error.

The indictment contained three counts. The 1st charged that on the seventh day of January 1812, with force and arms & c., he did falsely print and sign forge and counterfeit, and was concerned in the falsely printing, signing, & c. a certain false and counterfeit note, commonly called a bank note, purporting to have been made and drawn by the President, Directors and Company of the Bank of the United States at Philadelphia, and to have been signed by D Lenox, president, and to have been countersigned by G. Simpson, cashier, whereby the said president & c. promised to pay to W. Jones or bearer on demand twenty dollars, and to be dated the second day of November in the year 1809, in the words and figures following & c., with intent to defraud John B Remington, against the form of the act of assembly, & c.

The 2d charged him with falsely and unlawfully passing, and being concerned in the passing, as true, on the 7th of January 1812, a certain false forged and counterfeit note, commonly called a bank note, describing it as before, with intent to defraud the same person, (he the said Joseph White at the time & c., then and there well knowing the same to be false forged and counterfeited) against the form of the act, & c.

The 3d count alleged that on the said 7th day of January 1812 he did falsely and unlawfully utter and publish as true and genuine, a certain false forged and counterfeited note purporting to be a promissory note made by the president & c. of the Bank of the United States, dated Philadelphia, November the second in the year 1809, signed by D. Lenox, president, and countersigned by G. Simpson, cashier, whereby the said president & c., promised to pay to W. Jones or bearer on demand twenty dollars, with intention to defraud the aforesaid John B. Remington, (he the said White at the time & c. then and there well knowing the same to be false, forged, and counterfeited) against the statute and acts of assembly in such case made and provided.

The jury found him guilty on the 2d and 3d counts, and not guilty on the first: and he was sentenced to pay a fine of twenty dollars, and to be imprisoned at hard labour & c. seven years. The plaintiff assigned the general errors.

Phillips for the plaintiff in error. The second count is in the words of the fifth section of the act of 22d April 1794, 3 St. Laws 600, which provides for the crime of printing signing or passing any counterfeit notes of the banks of Pennsylvania, North America, or the United States. This act was passed in aid of the act of congress of the 25th February 1791, incorporating the subscribers to that bank; and as that act has expired, all penal auxiliary acts, though not limited, expire with the original act. U. States v. Passmore ^[a], 1 Hale H. P. C. 291. ch. 24., 1 Hawk. P. C. bk. 1. ch. 40. s. 10., 1 Hale 705. On the 7th of January 1812, there was no such person as the Bank of the United States, and of course no note of such a bank on that day; it follows that there could be no counterfeit note of such a bank on that day, which it would be an offence to pass. The alleged date of the note is not material; it would not follow from that, that it was not issued after the expiration of the charter, and therefore not a bank note.

The third count, if maintainable at all, must be supported at common law, because there is no act of assembly against uttering and publishing; the difference between uttering and publishing, and the offence in the act of 1794, passing, was settled by this court in The Commonwealth v. Searle ^[b]. But uttering and publishing such a note is no offence at common law, because from the dissolution of the charter of the Bank of the United States, it became an unincorporated company or association, and under the first and third sections of the act of 19th March 1810, it was unlawful either to issue, or to circulate such notes. Hence under the principle adjudged in Spangler v. The Commonwealth ^[c], it is not indictable to counterfeit them. There is another objection to this count, that it does not set out the note in words and figures, agreeably to all the precedents. It ought to be so spread upon the record that the defendant may plead it in bar to a second indictment. 2 East. Cr. Law 856 to 996.

Frazer and the attorney general (Ingersoll) for the commonwealth.

1. The act of 1794 is neither in aid of, nor engrafted upon, the act of congress incorporating the subscribers to the bank; but it is a perpetual law, intended to suppress a mischief that might, and does, outlive the charter, and therefore even if the act of congress had expired, the existence of the state law could not be affected. It is also a general law applying to several objects, and it would be extraordinary if it has expired as to one class of objects, and not to the others. The cases cited, are of the repeal of the very acts constituting the offence, or of supplemental statutes which fall upon the expiration or repeal of the principal statute. But in fact nothing but the corporate powers of the bank are extinct. Many of the sections of the law are and must for ever continue in force. Their notes are still receivable in payment of duties to the United States, as has recently been decided by Chief Justice Marshall, and the forgery of them, though committed before, may according to a decision of Judge Johnson, be prosecuted since the dissolution, under the act of congress of 27 June 1798. 4 U. S. Laws, 152. No doubt there are genuine notes of that bank in circulation. The forged note in question purports to be one of that sort. What the case would be if the note bore a date subsequent to the expiration of the charter, it is unnecessary to decide.

2. The third count is good at common law. To say that it is against the act of March 1810, to accept a note of the Bank of the United States, is absurd. That law was designed to prevent unincorporated companies from issuing notes, not to render unlawful the circulation of a bank, which had once been incorporated. Their notes are not notes of an unincorporated association, but notes deriving their validity entirely from a charter. As to the description of the note, it is sufficiently set out to identify it, and nothing more is requisite. The conclusion against the statute and acts, is surplusage. Indeed no objection has been taken on that ground.

TILGHMAN C. J.

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