Barnett v. State , 54 Ala. 579 ( 1875 )

BEICKELL, .0. J.

The indictment contains three counts, - the first charging that the defendants, being members or partners of a private corporation, caused or procured to be made, emitted, signed or.countersigned, without authority of law, a paper to answer the purpose of money. The second charges, that the defendants were associated together for the sale of merchandize, and caused or procured the paper to be made, emitted, &c. The third count charges the defendants with circulating paper, issued without authority of law, to answer the purposes of money. To the first and second counts a demurrer was interposed, on several grounds, and among others, because it is uncertain whether the defendants are charged individually, or as a private corporation, or as an association. The objection is not well taken; the indictment charges the defendants as individuals, and not as a corporation or association. The allegation that they were members or partners of a private corporation, or association, if it is not mere surplusage, serves only to point out the capacity in which they were acting in the commission of the offense — that they were engaged in transacting business as corporators, or as members of an association. That they were acting in that capacity does not relieve them from crinuinal liability, nor aggravate or mitigate the offense. If the corporation or association would be indictable for the offense, the defendants are charged as the immediate and active agents in its commission, and are also indictable. The indictment directly and without ambiguity charges them individually with the offense. If it had charged the corporation or association, it would have been by its corporate name.

Another ground of demurrer is, that the defendants are charged in the disjunctive, as members of a corporation, or of an association. The common law rule is; that the indictment must not state the offense in the disjunctive, so as to leave it uncertain what is really intended to be relied upon as the accusation. The rule is materially modified by our statutes, many of the forms of indictment prescribed alleging the offense disjunctively, and the statute providing generally that when the offense may be committed with different means or intents, such means or intents may be alleged in the same count in the alternative. — B. C. § 4123. The objection has generally been confined to the statement of the offense, and rested' on the ground that it did not appear what particular offense the defendant was required to answer. That is not the objection now made — the offense, and the facts constituting it, are positively averred. The objection is, that it is averred the defendants were partners or corporators when they committed it. Whether they were the one or the other — or whether they were without any other association or connection, than participation in the offense charged, their guilt and punishment is the same. The allegation is, therefore, immaterial, and uncertainty in an immaterial allegation is not cause of demurrer. — 1 Bish. Cr. Pro. § 592; State v. Corrigan, 24 Conn. 286.

The statute, under which the first and second counts are framed, declares, “ any person, private corporation, or association, who makes, emits, signs or countersigns, or causes or procures to be made, emitted, signed or countersigned, without authority of law, any paper to answer the purposes of money, or for general circulation, must each, on conviction, be fined,” &c. — B. C. § 3643. It is a general rule of criminal pleading, that if written instruments, or papers which may be written or printed, enter into - the gist of the offense — if the offense consists in the making, utterance or publication of such instruments, they must be set out in words and figures in the indictment. The most frequent application of the rule is to indictments for forgery, libel, sending threatening letters, &c. — Whart. Am. Cr. Law, § 306. In these cases the offense depends wholly on the character of the instrument. The court can determine only from the instrument, whether it is of the character of which forgery can be' committed, or whether its matter falls within the legal definition of libellous; or whether the letter is within the statute punishing the offense. The character of the paper is not of the gist of this offense — whatever may be its character, if issued or circulated to answer the purposes of money, without authority of law, the offense is complete. It is the purpose for which it is issued or circulated, and the absence of legal authority for its issuance or circulation that constitutes the offense. If this is its purpose, its form, or its contents, is not material. If a particular form, or particular contents, were essential, the statute would be easy of evasion, and the community subject to all the evils it was designed to remedy. The form, or contents, may furnish evidence that the parties engaged in its emission or circulation, had not the criminal purpose. That is matter of fact to be determined by the jury. The purpose would not be inferred as matter of law, from the paper, whatever may be its form, or its contents.— Bliss v. Anderson, 31 Ala. 612. So the form or contents can not, as matter of law, negative the criminal purpose. The indictment should so describe the paper that the defendant will be informed of the facts relied on to constitute the offense and that he may be prepared to make his defense. The indictment in this case sets out a copy of the paper, and thereby fully informs the defendants and the court of the facts relied on as making the offense. It could not have been more particularly described. Any description identifying it, ■would have been sufficient.

"We can not see that any injury could have resulted to the ■defendants from the entry of'a nolle prosequi, as to the third ■count of the indictment, after the evidence was closed. It ■operated an acquittal on that count, all which could have been effected by a verdict of not guilty. — Whar. Am. Or. Law, § 513.

The difference between the word cents, as written in the paper offered in evidence, and its abbreviations cts. as written in the indictment, is not material.

The essence of the offense is the issue, without authority of law, of paper for general circulation or to answer the purposes of money. The evidence that the paper was used as money- — that it circulated as such where it was issued — that it was given and accepted in exchange for merchandize, or for marketable articles, was proper. It tended to show its adaptation to circulation and use as money. This was the effect of the evidence to which objection was made, and the objection was properly overruled. There was no error in refusing to permit the witness, Norvell, to state the purposes for which the paper was issued. Whether it was issued for general circulation, or to answer the purposes'of money, it was the province of the jury to determine from the evidence.

The several charges requested seem to be intended to present the question of the criminal liability of a principal for the -wrongful act of an agent, or of a partner, for that of his associate; and the liability of the defendants to a joint indictment. A principal or a partner may be civilly liable in damages for the tort of his agent or associate, under facts which would not subject him to criminal responsibility. In a civil suit, the material inquiry is, whether the wrong was done while the agent was within the line of the duty with which he was charged, or the partner within the scope of the partnership. In criminal cases, it is the participation of the principal or partner in the wrongful act, either directly by concurring therein or by assenting thereto. If the principal or partner commands, procures or expresses assent that the wrong shall be done, before or at the time of its commission, criminal responsibility may be fixed upon him. The offense charged on the defendants may be complete by a single act, yet it is in its nature continuous and of frequent repetition. The command, procurement, or assent, may not have been given when the paper was first made, emitted or signed. Whenever the paper was put in circulation, or used as money, by their agents, it was a new making and a new emission. If at any time they assented to its emission by their agents, or to its use in /their business, the paper being in effect a promise of payment by them, at the store in which they were partners, such assent fixes on them criminal liability. It is not necessary to inquire whether all of them would have been liable for the original making or emission — they are certainly liable for the subsequent emission and use. A retailer of spirituous liquors may not be liable, if his servant, in his absence, should, without his authority, sell to an habitual drunkard to-day — but if to-morrow the servant, in his presence and with his knowledge, makes such sale, he would be liable. In such case, it may be, he would not, under the authority of Patterson v. State, 21 Ala. 571, be liable for subsequent sales made by the clerk in his absence. Circumstances may have existed inducing him to sanction the particular sale, not existing at subsequent sales; and it may not be just to infer that because he has once assented to a criminal offense, he will or does assent to its repetition. The offense the statute is Named to punish, is the use and circulation of paper, unauthorized by law, as money. It is founded in the policy of keeping under the supervision and control of the lawmaking power, that which is used as money — as a standard of value, or a medium of exchange — -withdrawing its making, emission, or circulation, from the pursuits in which the citizen may engage, without being specially authorized by law. When paper is once issued as money, it can be issued only with the intent that it shall circulate, pass and repass by mere delivery from one to another — when issued to be used in a commercial business, that it shall be paid out and received in the usual course of business. If a principal, with a knowledge that his agent — or a partner, that his associate has made and circulated such paper, consents at one time to the issue or use thereof, it is a consent to its appropriation to the purpose for which it is intended, and to all subsequent emissions or uses of such paper, until he dissents and takes some active step to prevent its continuous use and emission. Though each emission or use may, of itself, constitute an offense, it must have been contemplated and assented to when consent was given to the appropriation of the paper to the uses of money. The charges requested, when applied as they must be to the evidence, do not assert correct legal propositions, so far as they refer to the liability of the appellants for the acts of their common agents, or for the acts of each other. There was evidence tending to show they were partners, and also stockholders in the corporation, in the business of which the paper was issued and used — that they knew of its use and took no steps to prevent it. If benefit resulted from its use, they were the recipients of it. These were facts from which the jury could properly have inferred their assent to the emission and use of the paper, though some of them may not have known of its original making or emission. The original making or emission may have been one offense which could be visited on the agehts, who were the immediate actors in its. commission, and the assenting partners. The subsequent emission and use is another, which may be visited on all who participated or concurred in it.-

It is certainly true that several defendants may not be joined in the same indictment for several offenses, committed by them independently of each other. This is all that is asserted in the case of Elliott v. State, 26 Ala. 78, the authority to which appellants counsel have referred. It is the general rule of criminal practice, that defendants may be joined when the same evidence as to the act constituting the crime applies to each. The act constituting the offense is the making or emission of the paper for general circulation as money. The defendants bore to each other the relation of partners. They are jointly and severally guilty, though its making or emission may have come to their knowledge at different times. It is not essential they should have been informed of it at the same instant of time, or have jointly assented to it. "When it came to the knowledge of each (and each assented) that the money was being emitted and used, they became jointly liable, as they would have been in a civil action, the same evidence as to the act, is applicable to all.

We find no error in the record, and the judgment is affirmed.