Indictment in the Circuit Court of North Carolina for the
forgery of and an attempt to pass, &c., a certain paper of
writing in imitation of, and purporting to be a bill or note issued
by the president, directors, and company of the Bank of the United
States. The note was signed with the name of John Huske, who had
not been at any time president of the Bank of the United States,
but who, at the time of the date of the counterfeit, was the
president of the office of discount at Fayetteville, and was
countersigned by the name of John W. Sanford, who at no time was
cashier of the mother bank, but was at the said date cashier of the
said office of discount and deposit.
Held that this was an
offense within the provisions of the law.
It is clear that the policy of the act extends to the case. The
object is to guard the public from false and counterfeit paper
purporting on its face to be issued by the bank. It could not be
presumed that persons in general could be cognizant of the fact
who, at particular periods, were the president and cashier of the
bank. They were officers liable to be removed at the pleasure of
the directors, and the times of their appointment or removal, or
even their names, could not ordinarily be within the knowledge of
the body of the citizens. The public mischief would be equally
great whether the names were those of the genuine officers or of
fictitious or unauthorized persons, and ordinary diligence would
not protect them against imposition.
The defendant, Abel Turner, was indicted at May term, 1832, in
the circuit court under the 18th section of the act incorporating
the Bank of the United States, passed in April, 1816.
The indictment contained four counts.
The first count charged the defendant with having forged and
counterfeited a bill or note issued by the orders of the president,
directors, and company of the Bank of the United States, the tenor
of which said false, forged, and counterfeited paper writing was as
follows, to-wit:
"The president, directors, and company of the Bank of the United
States promise to pay twenty dollars, on demand, at their office of
discount and
Page 32 U. S. 133
deposit, in Fayetteville, to the order of D. Anderson, cashier
thereof. Philadelphia, 4 July, 1827. John W. Sandford cashier, John
Huske, president,"
with intent to defraud the president, directors, and company of
the Bank of the United States, against the form of the act of
Congress, &c.
The second count charged the defendant with an attempt to pass
the said note, describing it in the same form, knowing it to be
forged, with intent to defraud the Bank of the United States.
The third count charged the offense of passing, uttering and
publishing the same note with intent to defraud the bank.
The fourth and fifth counts charged the defendant with an
attempt to pass and with having passed the note to one Elliott with
intent to defraud him. The note was described in the counts in the
same form and terms as in the first count.
The jury found the defendant guilty on the fourth and fifth
counts and not guilty as to the residue.
Upon the trial of the cause, it occurred as a question whether
the attempt to pass the counterfeit bill, in the indictment
mentioned knowing the same to be counterfeit, the said bill signed
with the name of John Huske, who had not at any time been president
of the Bank of the United States, but at the time of the date of
the said counterfeit bill was the president of the office of
discount and deposit of the Bank of the United States at
Fayetteville, and countersigned with the name of John W. Sandford,
who at no time was cashier of the Bank of the United States, but
was at the date aforesaid cashier of the said office of discount
and deposit, was an offense within the provisions of the act
entitled an act to incorporate the subscribers to the Bank of the
United States, upon which question the judges, being divided in
opinion, ordered that the same should be certified to the Supreme
Court of the United States for the opinion of that Court.
Page 32 U. S. 134
MR. JUSTICE STORY delivered the opinion of the Court.
This cause comes before the Court upon a certificate of division
of opinion of the judges of the Circuit Court for the District of
North Carolina. The defendant, Abel Turner, was indicted for the
forgery of and an attempt to pass, &c., a certain paper writing
in imitation of and purporting to be a bill or note issued by the
president, directors, and company of the Bank of the United States.
The indictment contained several counts, all founded upon the 18th
section of the Act of 10 April, 1816, ch. 44, establishing the Bank
of the United States. Upon the trial of the cause, it occurred as a
question whether the attempt to pass the counterfeit bill in the
indictment mentioned, knowing the same to be counterfeit, the said
bill being signed with the name of John Huske, who had not at any
time been president of the Bank of the United States, but at the
time of the date of the said counterfeit bill, was the president of
the office of discount and deposit of the Bank of the United States
at Fayetteville, and countersigned by the name of John W. Sandford
who at no time was cashier of the Bank of the United States, but
was, at the date aforesaid, cashier of the said office of discount
and deposit was an offense within the provisions of the act. Upon
this question, the court, being divided in opinion, ordered the
same to be certified to this Court.
Page 32 U. S. 135
The bill or note itself is not set forth
in haec verba,
except in the count on which the question arose and which charges
that the defendant, with force and arms, &c.,
"feloniously did attempt to pass to one S.E. as and for a true
and good bill or note, a certain false, forged, and counterfeit
paper writing, the tenor of which, &c., is as follows: 'The
president, directors, and company of the Bank of the United States
promise to pay twenty dollars on demand at their office of discount
and deposit in Fayetteville to the order of D. Anderson, cashier
thereof, Philadelphia, 4 July, 1827 -- John W. Sandford cashier,
John Huske, president' -- with intent to defraud the president,
directors, and company of the Bank of the United States."
The bill, therefore, purports on its face to be signed by
persons who are respectively president and cashier of the bank.
One of the fundamental articles of the charter (§ 11, art. 12)
declares that the bills and notes which may be issued by order of
the corporation, signed by the president and countersigned by the
cashier, promising the payment of money to any person or persons,
his, her, or other order, or to bearer, shall be binding and
obligatory on the same. So that the present counterfeit bill
purports to be signed by officers, who were the proper officers to
sign the genuine bills of the bank.
The persons named in the counterfeit bill not being in fact the
president and cashier, although so called, the question arises
whether the party is liable to indictment for an attempt to pass
it, under the 18th section of the act of 1816. We are of opinion
that he is, within the words and true intent and meaning of the
act. The words of the act are
"If any person shall falsely make, &c., or cause or procure
to be falsely made, &c., or willingly aid or assist in falsely
making, &c., any bill or note in imitation of, or purporting to
be, a bill or note issued by order of the president, directors, and
company of the said bank, &c., or shall pass, utter or publish,
or attempt to pass, utter, or publish, as true, any false, &c.,
bill or note, purporting to be a bill or note issued by the order
of the president, directors and company of the said bank, &c.,
knowing the same to be falsely forged or counterfeited, &c.,
every such person, &c."
The case therefore falls directly within the terms of the act.
It is an attempt to pass a false
Page 32 U. S. 136
bill or note, as true, purporting to be a bill or note issued by
the order of the president, directors and company, for the word
"purport" imports what appears on the face of the instrument.
Jones' Case, 2 Doug. 802; 2 Russell on Crimes, b. 4, ch.
32, § 1, 345-6, 2d edition;
id., 363-367. The preceding
clause of the section very clearly shows this to be the sense of
the word in this connection. It is there said if any person shall
falsely make, &c., any bill, "in imitation of, or purporting to
be, a bill," &c., where the words "in imitation of" properly
refer to counterfeiting a genuine bill, made by the proper
authorized officers of the bank, and the words "or purporting to
be," properly refer to a counterfeit bill, which on its face
appears to be signed by the proper officers. In the view of the
act, then, it is wholly immaterial whether the bill attempted to be
passed be signed in the name of real or fictitious persons or
whether it would, if genuine, be binding on the bank or not.
And it is equally clear that the policy of the act extends to
the case. The object is to guard the public from false and
counterfeit paper, purporting on its face to be issued by the bank.
It could not be presumed that persons in general would be cognizant
of the fact, who, at particular periods, were the president and
cashier of the bank. They were officers liable to be removed at the
pleasure of the directors, and the times of their appointment or
removal, or even their names, could not ordinarily be within the
knowledge of the body of the citizens. The public mischief would be
equally great, whether the names were those of the genuine
officers, or of fictitious or unauthorized persons; and ordinary
diligence could not protect them against imposition. 2 East P.C.
ch. 19, § 44, 950; 2 Russell on Crimes, b. 4, ch. 32, § 1, 341 (2d
edition).
Upon examining the English authorities upon the subject of
forgery and the utterance of counterfeit paper, they appear to us
fully to justify and support a similar doctrine. It is, for
instance, clearly settled that the making of a false instrument,
which is the subject of forgery, with a fraudulent intent, although
in the name of a nonexisting person, is as much a forgery as if it
had been made in the name of a person known to exist, and to whom
credit was due. 2 Russell on Crimes,
Page 32 U. S. 137
b. 4, ch. 32, § 1 (2d edition), 327-333, and the cases there
cited;
id., 470, 474; 2 East P.C. ch. 19, § 38, 940. Nor
it is material whether a forged instrument be made in such a manner
as that if, in truth, it were such as it is counterfeited for, it
would be of validity or not. This was decided as long ago as
Deakins' Case, 1 Sid. 142; 1 Hawk. P.C. ch. 70, § 7; 2
East P.C. ch. 19, § 43, 948. Nor is it any answer to the charge of
forgery, that the instrument is not available, by reason of some
collateral objection not appearing upon the face of it. 2 Russell
on Crimes, b. 4, ch. 32, § 1 (2d edition), 337-341;
id.,
470-74.
So that upon the words and policy of the act itself, as well as
upon the footing of authority, we are of opinion that the offense
stated in the division of opinion is within the act of 1816. And we
shall accordingly certify this to the circuit court.
This cause came on to be heard on the transcript of the record
from the Circuit Court of the United States for the District of
North Carolina, and on the question and point on which the judges
of the said circuit court were opposed in opinion, and which was
certified to this Court for its opinion, agreeable to the act of
Congress in such case made and provided, and was argued by counsel,
on consideration whereof it is the opinion of this Court that the
attempt to pass the counterfeit bill in the indictment in the
proceedings mentioned, under the circumstances in the said
certificate of division of opinion mentioned, in an offense within
the provisions of the act of Congress stated in the same
certificate, whereupon it is adjudged and ordered by the court,
that it be certified to the said circuit court for the District of
North Carolina, that the attempt to pass the counterfeit bill in
the indictment in the proceedings mentioned, under the
circumstances in the said certificate of division of opinion
mentioned, is an offense within the provisions of the act of
Congress stated in the same certificate.
