The prisoner was indicted for the robbery' of John Duffey in a certain lane near the highway, of the following property viz. “ T wo ten dollar notes of the President “ directors and company of the bank of the United States; one “ ten dollar note of the President directors and company of the u bank of North America; one five dollar note of the President “ directors and company of the bank of Pennsylvania; and one “ three dollar note of the Philadelphia bank; being altogether “ of the value of thirty eight dollars of the goods and chattels of “ the said John Duffey.”
On the trial of this indictment, the jury acquitted the prisoner of the robbery, and found him guilty of larceny. His counsel have offered two reasons in arrest of judgment, 1st. That the *205Indictment does not pursue the act of Assembly, by which the property alleged to have been stolen was made the subject robbery or larceny. 2d. That the indictment lays the property to foe the goods and chattels of Duffey.
It is admitted that bank notes were not the subject of larceny at common law. Burthe' present question depends upon the act of Assembfy of 5th April, 1790, sec. 5. by which it is enacted, “ that robbeiy or larceny oí promissory notes for the payment of “ money, shall he punished in the same manner as robbery or “ larceny of any goods or chattels
The punishment of robbery and larceny being severe and ignominious, we must confine ourselves to those strict rules of construction, which have always prevailed in the consideration of indictments on highly penal statutes.
The subject is not altogether new. Decisions have taken place in England on a statute similar to our act of Assembly; I mean the statute of 2 Geo. 2. c. 25. s. 3. by which, among many other things, bank notes, and notes for the payment of money, are made subjects of felony. In the case of the King v. Craven, who was indicted on this statute for stealing “ a certain note, u cor, ' nly culled a bank note, of the value of one pound, “ marked &c, dated &c. and signed by A. Hooper, for the “ Governor and Company of the bank of England, by which said “ note, said Hooper, for said governor See. did promise to pa}' “ to Abraham Newland, or bearer on demand, the sum of one “ pound, the said note being the property of one T. G. &c.,” after conviction, all the judges, on reference to them in March 1801, held the indictment ill laid, as in describing the property stolen to be a note, commonly called a bank note, it did not follow any of the descriptions of property in the statute, and in other respects seemed inaccurate. What those other respects were, is not mentioned. But from what is mentioned, we see the very strict construction supported by tbe English judges. One of the descriptions in the statute is, notes for the payment of money. Our act of Assembly says, promissory notes for the payment of money. The indictment should either aver in the words of the act of Assembly, that the notes stolen were promissory notes for the payment of money, or give such a description as proves them incontestably to have been promissory notes for the payment of money, without conjecture, or reference to facts not stated in the indictment. Jn the case before us, the *206indictment charges the notes to be “ two ten .dollar notes of the ““ President directors and company of the bank of the United “ States,” and so of the rest. Now though I am satisfied from having often seen notes of these banks, that they must have been promissory notes for the payment of money, yet I cannot say that this positively appears on the face of the indictment. A note of a bank is a general expression, by no means positively importing that it is a note by which that bank promised to pay money.
It appears upon search that the precedents of indictments on this act of Assembly, have not been uniform. In the if ase of the Commonxvealth v. Dolan and Donelly, in the Mayor’s Court October sessions 1801, the exception now urged, was taken to the indictment. No judgment was given, because the defendants absconded; but since that time it has been usual to frame the indictments so as to avoid the exception.
Upon the whole, I am of opinion that this exception is good. The judgment must therefore be arrested.
It is unnecessary to give any opinion on the second point;, although I would by no means have it understood, that I think the indictment bad because the notes are laid to be the goods and chattels of John Dujfey. Yet I certainly consider it as more correct to lay them to be the property of the person from whom they are stolen, (a)
Smith J.Two reasons have been filed in arrest of judgment; if either of them be valid, the judgment must be arrested.
Whether the great strictness in favour of life, which has at. all times been required in England., in every point of indictments in capital cases, ought to extend to indictments for offences formerly capital in Pennsylvania, but now subject only to imprisonment at hard labour, and a certain proportion of the time to confinement in the solitary cells, will deserve great consideration when the point comes directly before the court. For the humane judge Hale complains, and the complaint has been a thousand times repeated since his time, “ that “ this strictness has grown to be a blemish and inconvenience “ in the administration of the law; for that more offenders “ escape by the over easy ear given to exceptions in indict- “ ments, than by their own innocence; and many times gross *207ts murders, burglaries, robberies, and other heinous and crying “ offences, remain unpunished by these unseemly niceties; to “ the reproach of the law, to the shame of government, to the “ encouragement of villany, and to the dishonour of God.” 2 Hale 193. So far as these unseemly niceties have prevailed in capital cases decided before the revolution, we are fettered by them. We are not at liberty to overrule an exception which has prevailed before in a case exactly in point, although every judge and every well read lawyer who hears it, may be convinced it has no foundation in the merits of the particular case, or in the general principles of law.
However, great as this evil undoubtedly is, it is perhaps better that it should be submitted to, than that the opposite evil should creep into its place. Should courts launch into a sea of ■Uncertainty, having no land marks to guide them, the innocent, not knowing under a vague charge in the indictment what they are really to answer, may suffer; and I do not know that the guilty will have a less chance of escape than they have under the present strictness. This consideration will make us “ rather “ bear those ills we have, than fly to others that we know not of.” Where courts are not bound by established precedents or by adjudged cases in point, they are at liberty to exercise a sound legal discretion, in adjudging whether judgment in a criminal or in a civil case shall be arrested.
I will now consider the two reasons filed in arrest of judgment, in their order.
1. It is generally a good rule in indictments at common law, that the special manner of the whole fact be set forth with such certainty, as that the party may know with what offence he is charged, and thereby be enabled to prepare for and instruct his counsel in his defence; that those words of art, which the law hath appropriated for the description of the offence, must be inserted in the indictment, and cannot be supplied by any other words. 2 Hawk. 224, 5. The same rules which are laid down in the books, respecting indictments at common law, are gene, rally applicable to indictments on statutes. 2 Hawk. 245. There is no necessity in any indictment grounded on a statute, to recite that statute. But unless it be recited, neither the words contra for mam-statuti, nor any periphrasis, intendment, or conclusion, will make good an indictment which does not bring the fact prohibited or commanded, in the doing or not doing *208whereof the offence consists, within all the material words the statute. Idem 249. Indeed, besides pursuity the very words of the statute, it is sometimes necessary to add other words to state the fact fully, directly, and expressly; as indictments for perjury on the statute of 5 Eliz., and for usury &c.
Now what are the material words relating to this point in the act creating the crimes, or to speak more correctly, making promissory notes for the payment of money the subject 'matter of robbery and larceny, for which the defendant has been indicted, and of one of which crimes he has been found guilty by the traverse jury? They are contained in the 5th section of the act of 5th April 1790. The only words in this section descriptive of bank notes, are promissory notes for the payment ofmoney; but such words are not stated in the indictment in question as descriptive of the bank notes, for the robbery and larceny of which the defendant has been indicted, and for the larceny of which he has been found guilty. The, words in the indictment describing the bank notes are “ Two ten dollar notes of the “ President directors and company of the bank of the United States” &c. Now these not being the material words in the act of Assembly, making bank notes the subject matter of robbery and larceny, they not being so at common law, and this indictment being grounded on the act of Assembly, it cannot be supported; this exception is valid, and judgment must be arrested. However, it does not generally follow that because judgment is arrested, the party escapes punishment if guilty. The attorney general may move the court to have him bound over to answer' to another indictment, and he cannot avail himself of judgment being arrested for a mistake in the indictment. He must answer to another indictment properly describing the offence with which he is charged.
2. I have my notes before me on which I had formed my opinion on the second exception; but it is not now necessary to give that opinion. I will only say, that on a consideration of all the cases, I am by no means prepared to say that laying the bank notes to be the goods and chattels of Duffey would vitiate the indictment, were they otherwise technically described. However, perhaps it will be ádvisable in future to lay them as the property of the owner.
Judgment arrested.
Vid. 1 Dyer 5 b