Commonwealth v. Davis , 77 Mass. 4 ( 1858 )

Merrick, J.

The jury were advised, in conformity with the request of the defendant, that if, in procuring the bank bills, he acted merely as the agent of Hubbard, or if, upon the sale and delivery of them to him, he was ignorant of the intention of the purchaser to pass them as true, or otherwise to dispose of them in violation of law, he ought not, upon the other evidence in the case, to be found guilty of the offence charged against him in the indictment. But the court declined to add the further instructions in the terms proposed by the counsel for the defendant, that an indictment against a party for having in his possession a certain false, forged and counterfeit note or bill, with intent to utter and publish the same as true, or to utter and pass, or render the same current as true, would not be supported by a sale and delivery of counterfeit bills or notes to a person who had knowledge of their real character and was truly informed of it by the vendor at the time of the sale. It is perfectly clear that this request ought not to have been acceded to, for, whether its accuracy as a legal proposition could be maintained or not, there was no reason why any such rule should then have been laid down or prescribed. No occasion had arisen in the progress of the trial for its application. It is not shown that the counsel on the part of the government claimed or asked for a verdict of conviction upon any such ground. On this contingency, it was only after it should have been satisfactorily established that the defendant had in his possession the counterfeit bills, as alleged in the indictment, that it could have become essential to know whether, upon proof of certain other specified facts, it would be legally competent for the jury to deduce from it the inference that he held them with the criminal intent to utter, pass or render them current as true. And they were accordingly instructed by the court in reference precisely to the question which had then arisen, that the second count would be supported by proof that the defendant, being himself fully apprised that the bills were false and counterfeit, and knowing that it was the purpose of Hubbard, upon obtaining them by purchase, to utter, pass and rendei them current as true, had them in his possession with intent to sell them to Hubbard, and did actually sell them to him, to enable him so to dispose of them in violation of law, and did participate with him in carrying that criminal purpose into execution. This was certainly correct and adapted to the question of fact to be determined. After proof that, with full knowledge of their character, he was in possession of bills which were false and spurious, though in the similitude of those which were genuine, it remained to be ascertained whether it was the intention of the defendant to defraud any persons in the community by passing or causing them to be passed as true. This was one of the essential allegations in the indictment; and if this was his object, then he held them with the criminal intent which constitutes one of the material elements of the offence which was charged against him. It makes no difference in what manner the intent was to be executed; whether by his own hand or by an agency which he had himself set in motion. The purpose of his own mind, with respect to giving currency to forged and simulated bills as true, was the same, if the scheme of falsely palming them upon the community was to be executed either immediately by himself, or by a confederate acting in concert with him. Engaged in a common enterprise of an unlawful character, every conspirator is responsible for whatever is done by his associates in pursuance of the general plan which they may have devised for its accomplishment. This is in substance the rule which was laid down as a guide to the jury; but whether the facts to which it was hypothetically applied were satisfactorily proved was left entirely to their determination. There is therefore no force in, or foundation for, the objection urged on behalf of the defendant, that the court assumed without any, or without sufficient, evidence that the intention of Hubbard in obtaining possession of the bills was to pass or render them current as true.

But the proceedings at the trial in reference to the third count were irregular and erroneous. The court should have determined, upon inspection and perusal of the indictment, what were the allegations it contained, and what offence it charged that the defendant had committed. It is a fixed and fundamental rule respecting indictments, that the charge must contain a certain description of the crime of which the defendant is accused, and a statement of the facts of which it is constituted. This is essential alike for the security of the defendant and for the successful termination of the prosecution. Otherwise the grand jury might find a bill for one offence, and the accused be put upon his trial, without authority, for another; or if there should be a verdict against him, the judgment might be arrested on account of the insufficiency of the allegations or the imperfections and errors of the indictment. 1 Chit. Crim. Law, 169, 661. It is within the province of the jury to determine the issue between the Commonwealth and the defendant, and they are accordingly sworn only to the faithful performance of that duty. Rev. Sts. c. 137, § 7. But the court must decide upon the face of the record of what crime or offence he is accused, in order that it may be known in advance for what he is put upon trial, or for what in the end, if he is found guilty, he may be punished. Remon v. Hayward, 2 Ad. & El. 666. The court therefore should not have left to the jury the question whether the words “ as true ” constituted a part of the third count, or had been stricken from it. If left to them, there is nothing, after a general verdict, on the face of the record, by which it can be determined whether those words are in or not in the indictment, and consequently nothing by which it can be determined with certainty of what the accused has been convicted. This objection is fatal to the verdict upon the third count. Upon examination of the whole record it is impossible anywhere to find whether the defendant was found guilty of simply passing the counterfeit bills, or of passing them “ as true.”

For the reasons above stated, the exceptions in relation to the second and fourth counts are overruled, and judgment is to be entered on the verdict; but as to the third the exceptions are sustained, the verdict is set aside and a new trial ordered. And for these purposes the case is

Remitted to the court of common pleas.