The substantive charge laid in this indictment against the defendant is an intention to pass the counterfeit bank-note therein described, knowing it to be counterfeit. It is true, and it may be assumed as a legal truth in our criminal code, that it is the intention which constitutes the offense. But that intention must, at least in part, be evidenced by some act of the party. No act of the defendant is here charged as culpable, although the note may be counterfeit; yet he may have become possessed of it innocently, and acquired that knowledge afterwards.
No instance can be found where such a charge has been substantiated at common law, and this is rendered the more probable from the great many offenses which have been created by statute relative to counterfeit coin. We will notice one created by Statute 37, Geo. III., where it is made an offense to have the possession of certain counterfeit coin without lawfulexcuse, which shows that such possession was not an offense before that time.
It is true it was held in Sutton's case, 1 East C. Law, 172, by three judges against the opinion of Lord Hale, that the possession of two iron stamps, etc., with an intent to counterfeit, etc., and utter the coin so counterfeited, was an offense at common law; but the difference between *Page 104 (131) that case and the present case consists in this, that the stamp carried with it no disguise and a person was not so likely to acquire possession of it as innocently as of a counterfeit note, on which might be placed every disguise that ingenuity could give it.
We are of opinion that the indictment should be quashed.
Cited: S. v. Sykes, 180 N.C. 681.