State v. Cassel , 2 H. & G. 407 ( 1828 )

Stephen, J.

delivered the opinion of the court. This ease comes up on a writ of error directed to Baltimore, city court; and the question presented for the adjudication of this c-urt, arises upon the sufficiency of the matters charged in the indictment to sustain the prosecution. The grounds of the motion in arrest of judgment have been examined and carefully considered, and the result of our most mature deliberation, has been a conviction, that they did not warrant the judgment rendered in the court below. This is an indictment founded upon the act of 1809, ch. 138, commonly called the Penitentiary Law, which provides, that, larceny of any bank note or notes shall be punished in the same manner as larceny of goods and chattels. This act speaks of a bank note or notes as the subject of larceny, without stating that they must be the notes of any particular bank or banks; and it would, therefore, seem to be reasonable, and we think the law requires nothing more in this case than to charge the offence in the language of the statute. In this respect the act of 1809, ch. 138, differs from the act of 1793, ch. 35, which 'mentions the character or description of the banks by which the notes must have been issued; but upon that subject the act of 1809 is totally silent. The prosecution being bottomed upon that act alone, and not upon any other in conjunction with it, it is clear, beyond controversy, that the conclusion is in strict conformity with the established principles of ' criminal pleading. Where an offence is created by one statute, and the punishment is prescribed or affixed by another, we think the better opinion is, that the conclusion should be contra formam statutorum. See 2 Hale’s Pleas of the Crown, 173, where he says, if one statute be relative to another, as where the former makes the offence, and the latter adds a penalty, the indictment ought to conclude contra formam statutorum. In support of which principle he refers to Dingley vs. Moor, Croke Elizabeth, 750. To the same effect, see 3 Bacon’s Abr. tit, Indictment, 571. Upon the subject of the sufficiency of the description of the notes, see also 2 Russell on Crimes, 1149, 1150. By an express decision of this court, in Towson vs. The Havre de Grace Bank, 6 Harr & Johns. 53, bank notes ai’e considered and treated as money; and it would, therefore, seem to be strange that no rule or principle is held to exist, by which a jury could ascertain their value for the purpose of graduating the offence charged in the indictment.. We think the true rule is to look for that purpose to the sum which upon the face of them they promise to pay. For these-reasons, without entering further into the subject, the judgment ©f Baltimore city court is reversed.

JUDGMENT REVERSED, AND PROCEDENDO.AWARDED*