33 U.S. 288
8 Pet. 288
8 L.Ed. 948
THE UNITED STATES
January Term, 1834
ON a certificate of division of opinion of the judges of the circuit court of the United States for the district of Pennsylvania.
The defendant was indicted in April 1833, in the circuit court for the district of Pennsylvania, for passing a counterfeit note of the denomination of ten dollars, purporting to be a note issued by the Bank of the United States, with intent to defraud the bank scienter, &c.
He interposed three several pleas to this indictment, in the second of which he avers that the note described in the indictment, &c., was heretofore given in evidence, with the facts and circumstances attending the said passing thereof, on the the trial of defendant, upon a certain former indictment found against him for passing another ten dollar counterfeit note, to sustain that indictment; and that he was thereupon acquitted, &c.
To this plea the United States demurred, and the defendant joined in demurrer; but as the opinions of the judges were opposed as to the judgment to be given thereon, the case was certified for the opinion of this court.
The case was argued by the Attorney-General for the United States. No counsel appeared for the defendant.
The Attorney-General submitted to the court the following points; and referred the court to the authorities on both sides of the question presented by them.
1. It appears by the record, that the offences for which the defendant was indicted, were not the same. Cited on this point: 2 Hale's P. Cr. 244; 4 Hawk. 316, 314; 1 Chitty's Crim. Law 453, 456; 1 Leach's Crown Law 242; 2 Leach's Crown Law 716; Rex v. Clarke, 1 Broad. and Bing. 473; 9 East 437; Van Horton v. Hawey, 2 New York City Recorder 73.
2. The acquittal upon the first indictment does not necessarily involve any decision upon the question presented by the last. Cited: 2 East 519; for the general principles, 522; Jackson v. Wood, 3 Wendell's Rep. 27; 8 Wendell's Rep. 9; Starkie on Evidence, part 2, sec. 65, 198, 202.
3. The passing of the note described in the last indictment, was not a fact embraced within the issue formed upon the former indictment; and if given in evidence on the trial of that issue, it could only have been as a collateral circumstance tending to prove the scienter in respect to the note described in the first indictment; and this does not protect the party from answering directly for the fact, in an indictment founded thereon. Starkie, part 4, 379, 380, 382.
Mr Chief Justice MARSHALL delivered the opinion of the Court.
The defendant was indicted in April 1833, in the circuit court for the district of Pennsylvania, for passing a counterfeit note of the denomination of ten dollars, purporting to be a note of the Bank of the United States, with intent to defraud the bank, &c.
He pleaded that the note described in the indictment had been heretofore given in evidence on the trial of the defendant, upon a former indictment found against him for passing another counterfeit ten dollar note, upon which indictment he had been acquitted.
The United States demurred to this plea, and the defendant joined in demurrer.
The judges were opposed in opinion, on the question whether the judgment on the demurrer should be entered in favour of the United States or of the prisoner, which division of opinion is ordered to be certified to the supreme court of the United States.
The offence for which the defendant was indicted, and to which indictment he pleaded the plea of a former acquittal, was entirely a distinct offence from that on which the verdict of acquittal was found. The plea does not show that he had ever been indicted for passing the same counterfeit bill, or that he had ever been put in jeopardy for the same offence. We are therefore of opinion, that the matter pleaded is no bar to the indictment, and that the demurrer ought to be sustained. A certificate to this effect is to be given.
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 Pennsylvania, 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, agreeably 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 judgment on the demurrer to the second plea pleaded by the defendant to the indictment filed against him, ought to be rendered for the United States. Whereupon, it is ordered and adjudged by this court, that it be certified to the said circuit court that judgment on the demurrer to the second plea pleaded by the defendant to the indictment filed against him, ought to be rendered for the United States.