The plaintiff in error, was indicted and con•victed for uttering and passing as genuine, a two dollar bill on “ The Delaware City Bank ” with intent to defraud Jeremiah dowry. The indictment contained but one count. And the '■evidence on the trial shows, that the bill in question was not on .•any bank incorporated by, or within the limits, of this State. It ¡also shows that this bill was fictitious, there being no such bank -in existence.
We are asked to reverse this conviction, first, because under our statute it is made a penal offense to pass or to receive, any bank bill of a less denomination than five dollars, on any bank not incorporated under the laws of this State. And secondly, •because the indictment charged the offense, of passing a bill purporting to be on a bank having an existence, when the evidence shows that there is no such bank.
The Supreme Court of the State of New York, in the case of The People v. Wilson, 6 Johnson’s R. 320, under a similar statute to ours, say, that “ It cannot therefore, be felony to utter and publish, in this State, such a forged bill; because no person-can be defrauded, as every person is bound to know, that it is unlawful to accept in payment, or circulate such a bill. The fraudulent intent is the gist of the charge, and that intent cannot be inferred from uttering the bill, when every person knows that it is unlawful to receive it, and that it is void as to the purposes of payment and circulation. The opinion of fill the judges in England in Maffil’s Case, Leach, 337, was that the forging of a bill of exchange, which if real would not have been valid or negotiable, but void under the statute, was not a capital offense.” The principle of that case was again recognized by the same court in the case of The People v. Rathbon, 21 Wend. 521. And the case of Rex v. Maffit, 2 Leach, 483, above referred to, seems to be the leading case on this question. And it is believed that it has been recognized as the law, by the courts generally both in this country and Great Britain, whenever the question has been presented for adjudication. And it is for the plain and obvious reason, that no legal fraud could be perpetrated upon a person, by passing to him a bill, which if genuine, he could not receive as money, or of any value, without incurring a penalty. A person so receiving such a bill, is guilty of a violation of the law, incurs a penalty, and when it is in his hands is worthless. If he utters it, or even attempts to do so, it subjects him to a like penalty. Such a bill in this State has no legal value, and under the law purports to have none, and when the uttering such with intent to defraud an individual, is the offense charged, it is insufficient to sustain a conviction. Whether if the offense charged, was the uttering it with the intent to defraud the bank upon which it purports to be a bill, would constitute a crime, is not presented by this record, and need not be here discussed.
As to the second question, presented; the indictment charges the passing a counterfeit bill, of a bank having an existence, and is framed under the 73rd Sec. of Chap. 30, R. S. p. 163. It creates, and provides for the punishment of the crime, of uttering forged and counterfeit bills and instruments, on persons and corporations, having an existence either within or without this State. While the 77th Sec. of the same act creates and provides for the punishment of the crime of making or uttering, with intent to defraud, any fictitious bill, check or other instrument, for the payment of money or property of some bank, corporation, co-partnership or individual, when in fact there is no such bank, corporation, co-partnership or individual in existence. The evidence in this case shows that this was a fictitious bill, purporting to be on a bank which had no existence. This being the case, even if the circulation of bills of that denomination, were not prohibited from circulating by law, a conviction could not be supported under this indictment, because the offense charged and that proved, are different and distinct. The proof of an offense under one of these sections, cannot support a conviction under the other. That would be to violate the rules of pleading and evidence, and is too plain to require discussion.
We for these reasons, are of the opinion that the conviction in this case was wrong; and that the judgment of conviction, of the court below, must be reversed and the prisoner discharged.
Judgment reversed.