The indictment is drawn under the act of .April 12, 1858, entitled an “ act to prevent the selling and bartering of counterfeit coin,” etc. S. & C. 425.
The act is not an amendment to the crimes act, but an independent act, and is as follows :
“ That if any person shall sell, barter, or in any way •dispose of, any false, forged, or counterfeit coin, made in -■the likeness and similitude of any of the gold, silver, or *410copper coin or coins currently passing in the state, . . . knowing the same to be false, forged, or counterfeit, every person so offending shall be deemed guilty of a misdemeanor.”
It is claimed for the plaintiff in error that, in order to convict under this act, the transaction must not only be a. sale of counterfeit coin, but that it must have been sold by the seller and received by the buyer as such. That, although the coin sold may in fact be counterfeit to the knowledge of the seller, yet if he effects the sale by false representations as to its genuineness, the transaction is not a sale-within the act.
It is not claimed that if the counterfeit character of the-coin is known to the buyer, that any false representations as to its quality will affect the criminality of the transaction.
As a general rule, fraud practiced by the seller in effecting the sale of an article, does not destroy the character of the transaction as a sale. It is no less a sale, though fraudulently effected, unless the purchaser elects to rescind.
The offense charged is to be determined by the terms of the statute. The operative words are “ sell, barter, or in any way dispose of; ” and these words must be construed according to their popular acceptation, unless good reason is shown for giving them a different construction.
Genuine coin is susceptible of being'made an article of sale, as contradistinguished from being passed as money in the way money is ordinarily used; and if parties, in’ a given instance, adopt that mode of transfer, we see no reason why the transaction may not be regarded in law as the parties intended it.
The ground on which counsel for the plaintiff in error base their claim is, that the act now in question should receive the same construction that has been given by the court in several cases to section 29 of the crimes act of 1885. Van Valkenburg v. The State, 11 Ohio, 404; Hutchins v. The State, 13 Ohio, 198; Bevington v. The State, 2 Ohio St. 161.
That construction arose from the connection of section 29 with section 22 Of the same act. Section 22 provided for *411the tittering or publishing as true and genuine of any false, forged, or counterfeited bank note or notes, with intent to-defraud any person or persons. In view of the language of section 22, it was held that section 29 had reference to the sale and disposition of false, forged, and counterfeit bank notes as such,-and not as genuine notes.
It is claimed that the act now in question bears the same-relation- to section 28 of the1 act of 1885, as section 29 bears-to section 22; and consequently the act in question and section 29 should have the same operation. But section 28 and the provision in ..question are found in independent acts, and the provisions above referred to, as contained in the 22d section of the act of 1835, are not found in the 28th section.
The 28th section provides: “That if any person shall' counterfeit any of the coins of gold, silver, or copper currently passing in this state; or shall .... put off' counterfeit coin or coins, knowing them to be such, . . . every person so offending shall be deemed guilty of a misdemeanor.” .- . .
In view, therefore, of the marked difference in the language of sections 22 and 28,- a majority of the court are-not disposed to apply the same limited construction to the-act of 1858 that has been applied to section 29 of the act of 1835. But, on the contrary, to hold that where a sale of counterfeit coin has been made by a party knowing it to-be counterfeit, the circumstance that the sale was also a fraud on the buyer will not prevent the guilty party from, being prosecuted as a seller under the act of 1858.
The traffic is no less guilty on the part of the seller than it would be if the buyer knew of the counterfeit character of the coin.
Motion overruled.