The defendant was convicted upon the second count in the indictment which charges that “he had about him, the said John Fergus, and did fraudulently keep in his possession, and conceal the counterfeit resemblance and imitation of a bank bill of the President, Directors & Co. of the bank of the United States, of the denomination of twenty dollars, in the words and figures in substance as follows,” &c. The indictment then sets out the note, and concludes with an averment that the defendant knew that the resemblance of a bank note so fraudulently kept in his possession and concealed, to be false and counterfeit.
This indictment does not charge the offence contemplated in the thirty-second section of the penal code, with sufficient certainty. The possession of counterfeit resemblances of bank notes, with intent to impose them on the community as good money, constitutes the offence .intended to be punished. The indictment ought to have so charged it, for where the evil intent constitutes a material part of the offence, it ought to be charged. 1 Ch. Crim. L. 233, 245: 6 East 474: 4 T. Rep. 129.
It is supposed the seventy-third section of the act renders a particular description of the offence unnecessary, and makes an indictment charging in the words of
There are obvious defects in the record before us. The plea of the prisoner is given historically ; it is in the past, not in the present tense, as it should be; nor does it purport to be the language of the prisoner. The defendant “pleaded not guilty, and for his trial puts'himself upon his country.” This is no good plea. But this is to be understood only as the expression of my opinion on this point.
It is" not charged in the bill of indictment, that the corporation from which .the forged bill purports to have issued, is a corporation that exists or may exist, or that no such corporation exists; one or other averment was indispensable to have brought the case within either the 32d or 33d section of the act; and this defect is not cured by either the 72d, 73d or 74th sections. But on the contrary, these sections require that at least the charge must be in the language of the act to make the bill good. Without this charge either affirming the existence or non-existence of such a corporation, we have no authority for saying that the bill of indictment is founded on the act. The rule is, that the bill of indictment must bring the case within the words of the statute, at least substantially. 2 Hale’s P. C. 168, 192. That it is not a sufficient bill of indictment at common law, will appear from the fact, that it wants an averment of fraudulent intent to cheat some one in particular, or the public in general.
Judgment reversed.