1. The sixth section of the Act of February 25, 1862, to punish
the counterfeiting of Treasury notes is not void for repugnancy in
its reference to uttering or passing such counterfeited notes.
2. Nor is an indictment pursuing the language of the statute bad
because it describes the note passed by the prisoner as a false,
forged, and counterfeit note of the United States, issued under the
authority of that statute or of other statutes authorizing the
issue of such notes.
3. The words "false, forged, and counterfeit" necessarily imply
that the instrument so characterized is not genuine, but only
purports to be, or is in the similitude of such an instrument, and
this implication is according to good usage and is supported by
adjudged cases.
Page 78 U. S. 433
Howell was indicted for passing counterfeit Treasury notes under
the sixth section of the Act of February 25th, 1862, [
Footnote 1] which provides:
"That if any person or persons shall falsely make, forge,
counterfeit, or alter, or cause or procure to be falsely made,
forged, counterfeited, or altered, or shall willingly aid or assist
in falsely making, forging, counterfeiting, or altering any note,
bond, coupon, or other security issued under the authority of this
act or heretofore issued under acts to authorize the issue of
Treasury notes or bonds; or shall pass, utter, publish, or sell, or
attempt to pass, utter, publish, or sell, or bring into the United
States from any foreign place with intent to pass, utter, publish,
or sell, or shall have or keep in possession, or conceal with
intent to utter, publish or sell,
any such false, forged,
counterfeited, or altered note, bond, coupon, or other
security with intent to defraud any body corporate or politic, or
any other person or persons whatsoever, every person so offending
shall be deemed guilty of felony, and shall, on conviction thereof,
be punished by fine not exceeding $5,000 and by imprisonment and
confinement to hard labor not exceeding fifteen years, according to
the aggravation of the offense."
The indictment contained two counts.
The first count charges that the defendant
"feloniously did pass, utter, publish, and sell, a certain
false, forged, and counterfeited United States note
purporting to be a United States note issued under the
authority of"
said act with intent to defraud &c., well knowing the same
to be false, forged, and counterfeited.
The second charged that the defendant "feloniously did pass,
utter, publish, and sell, a certain false, forged, and
counterfeited Treasury note, issued under the authority of" said
act, with intent to defraud &c., well knowing the same to be
false, forged, and counterfeited.
Demurrer to the indictment and joinder. Afterwards, on argument,
the following questions occurred:
"1. Whether the second count in the indictment, in manner and
form as therein stated, is in itself repugnant. "
Page 78 U. S. 434
"2. Whether the sixth section of the act is repugnant, and
whether any person could, under the said act, be legally convicted
of and punished for any offense whatever other than that of
altering, and causing and procuring to be altered, and willingly
aiding and assisting in altering a note, bond, coupon, or other
security issued under authority of said act."
"3. Whether the fourth paragraph or clause of the sixth section
of the act, which is in the words following, to-wit:"
" Or shall pass, utter, publish, or sell, or attempt to pass,
utter, publish, or sell, or bring into the United States from any
foreign place, with intent to pass, utter, publish, or sell, or
shall have or keep in possession, or conceal, with intent to utter,
publish or sell, any such false, forged, counterfeited or altered
note, bond, coupon, or other security, with intent to defraud,"
"&c., is repugnant."
"4. Whether the defendant could, under the said fourth paragraph
or clause, be legally convicted of and punished for uttering or
passing a forged or counterfeit note purporting to be a United
States or Treasury note issued under authority of said act."
"5. Whether he could, under the said fourth paragraph or clause,
be legally convicted of and punished for any offense whatever,
other than 'passing, uttering, publishing, or selling,' &c., an
'altered note, bond, coupon, or other security,' &c."
On each of which questions the opinions of the judges were
opposed. Whereupon the disagreement was certified to this
Court.
Page 78 U. S. 435
MR. JUSTICE MILLER delivered the opinion of the Court.
The judges of the circuit have certified to this Court five
questions arising on the indictment. The first question is whether
the second count of the indictment is bad as being in itself
repugnant, and the four other questions relate to a similar
repugnancy in the statute under which the indictment is framed. As
the count to which the first question refers pursues the language
of the statute, all the questions resolve themselves into the
single one of whether the act, so far as it relates to altering and
publishing forged or counterfeit
Page 78 U. S. 436
notes of the United States, is itself void for repugnancy.
The objection is that if the note which the party is charged
with passing was, in the language of the statute, "issued under the
authority of this act, or heretofore issued under acts to authorize
the issue of Treasury notes or bonds," it must necessarily be a
valid or genuine note, and if it was not issued under the authority
of some of these acts, the passing of the note is not made an
offense by the law.
There is some degree of plausibility in this hypercriticism at
first blush, which, if it were sound, would make the act void for
want of any meaning, a result which one of the first canons of
construction teaches us to avoid if possible, and which is at war
with the common sense, which assures us that the purpose of the act
was to punish the making of counterfeits of the notes and bonds
described in the statute. Nor is the criticism philologically just.
The offense is described as the passing of false, forged, or
counterfeited notes or bounds issued under the authority of the
statute. We are to give due weight to all the words employed in
describing the instrument, and cannot reject the words
false,
forged, and
counterfeited if it is possible to adopt
any reasonable construction which will permit them to stand. This
is done by mentally supplying the ellipsis which is in general use
in conversation or in writing in similar cases. We speak, for
instance, of "false diamonds." According to the criticism we are
considering, this phrase has no meaning, because if the stones
spoken of
are diamonds, they cannot be false, and if they
are
false, they cannot be diamonds. But anyone understands
the meaning to be false stones which purport to be diamonds, or
false similitude of diamonds. So we speak of a bank note. Now if
the paper spoken of is a forgery, it is not a bank note, which
means an obligation of some bank to pay money. But here also the
mind supplies the ellipsis which good usage allows, and understands
that what is meant is a forged paper in the similitude of a bank
note, or which on its face appears to be such a note. And in a
similar manner we speak of a forged will. If the argument
Page 78 U. S. 437
of defendant's counsel is sound there can be no such thing as a
forged will, receipt, note, or bond, because if forged, they are
void and therefore not notes, wills, bonds &c. In fact the
phrase "void will" or "void note," is, according to this argument,
a solecism, because the instrument cannot be at once the will or
note of the party and be void.
The use of the words false, forged, and counterfeit in the
statute imply, therefore, when applied to any of the obligations of
government mentioned, that it purports to be such an instrument,
but is not genuine or valid. And so are the authorities.
See 2 Russell on Crimes 801; East's Pleas of the Crown
950.
It is conceded that if the statute had, in describing the
offenses, called the instrument uttered a note
purporting
to be issued under the authority of the statute, the difficulty
would have been removed. In the case of
Rex v. Birch and
Martin, the indictment charged them "with publishing as true a
false, forged, and counterfeited paper writing
purporting
to be the last will of Sir Andrew Chadwick." It was objected that
the indictment was bad because "it should have been said that they
forged a certain will," which was the language of the statute, and
not a paper writing purporting to be a will. "But," says
Mr. East who, in his Pleas of the Crown, [
Footnote 2] makes a full report of the case, "a variety
of precedents were found, so that the judges held it to be good."
But it is apparent from the exception taken and from the language
of East and of Russell that the usual mode of charging the offense
was to say that the prisoner had forged the will or other paper,
and that either form is good.
The case of
United States v. Cantrell is relied on as
holding an opposite doctrine to that we have here presented. That
case was submitted without argument, and the report says that the
opinion of the court was that the judgment should be arrested for
the reasons assigned in the record. These reasons are that the
indictment was repugnant, because it
Page 78 U. S. 438
charged the prisoners with having published as true
"a certain false, forged, and counterfeited paper,
purporting to be a bank bill of the United States for ten
dollars,
signed by Thomas Willing, president, and G.
Simpson, cashier."
And because the statute relating to the charge set forth in the
indictment is inconsistent, repugnant, and void. In this statement,
the words "signed" and "purporting" are italicized, and the court
may have held the indictment bad because the former word was used,
thus sustaining the objection made in
Rex v. Birch and
Martin. Or it may have held that the language of the
indictment amounted to an averment, that the bill charged to be
forged was signed in fact by the president and cashier of the bank,
in which case it could not have been a forgery. Or it may possibly
have thought that under the peculiar language of that statute,
which differs materially from the one under consideration, they
were bound to hold it void for repugnancy. However that may be, we
do not consider the case, as it is reported, an authority for
holding the statute void which we are called on to construe.
To the first and third questions, and the first branch of the
second, we answer NO.
To the fourth and fifth, and the second branch of the second, we
answer YES.
[
Footnote 1]
12 Stat. at Large 347.
[
Footnote 2]
Page 950.
