majority">

Statement of the case and opinion of the court, delivered by

Tompkins, Judge.

Downing was found guilty on an indictment in the cir* cuit Court of St. Louis county, of putting in circulation as a circulating medium a certain note, contrary to the provJsJon^ 0f an act 0f Assembly, entitled “an act to1 suppress private bank notes,” and found guilty. He moved in arrest of judgment, and for a new tiial, and each of his motions was overruled. He now brings up the cause by a writ of error, to reverse the judgment of the circuit court.

On the trial of the cause, the State produced as a wit* ness Louis A. Benoist, who testifies, that about the time ment’10ned the indictment, Mr. Charles Mulligan of St. R°uis, asked the witness whether he had any notes of the Illinois Savings Bank, saying he wished to see the form °* ^em. The witness then went to the office of the II-hnois Savings Bank, in the City aiid county df St. Louis, kept by Elisha L. Conaut, and told said Conaut that MuL ^&an wanted to see one of said notes, for the purpose of seeing the form — that said Conaut then handed witness two notes, one of which is hereinafter set forth, and the ot^er payable, generally without naming the place, each being for fivedollars. The witness at the time, gave Conaut a five dollar note on the Bank of Illinois, and af-terwards sent him five dollars more, to pay for the said notes of the Illinois Savings Bank. The State having first proved the signature of the said Conaut as pres* ijent, and of the saia Downing as secretary, read to the jmiT the following instrument of writing, to wit: “Real estate pledged, No. 332. Office of the Illinois Savings ^ar1^ at St. Louis, will pay on demand to bearer, five dollsrs for that amount received on deposite, No. 332* Burlington, W. T., 25 th July, 1836. F. C. Downing, secretary, E. L. Conaut, president.” It appeared that ,i • /’ . . ..’.i r ,i , the instrument so set forth, was one ot the two1 notes received by L. A. Benoist from said Conaut, and that it was Part^y pvmted. from an engraving, and partly written Bank notes usually are. It appeared also, that several other like notes of the Illinois Savings Bank had been seen jn circulation in St. Louis — that said Conaut keeps broker’s office in St. Louis — that he had redeemed several of the notes when presented at his office, and had endéavored Io prevail on Louis A. Benoist and another person, two brokers in the city of St. Louis, to encourage the circulation of the said notes by receiving them at their offices. It appeared that Downing resided at Bur-*574Rngton, in Wisconsin Territory, where lie kept an officó called the Illinois Savings Bank — that Downing formerly resided, in St. Louis — that he removed to Wisconsin Territory, where he had since resided'.- . There was no evidence that he had been within the State of Missouri after he removed to Wisconsin, except last summer, when he had a conversation with said Benoist; in which, he inquired of Benoist, whether he thought that he, Downing, would be liable personally for the notes signed by him as secretary; to which, Benoist answering in the affirmative, Downing said it was strange, that he-had nothing to do with the Bank but as secretary — that he signed the notes as an}’’ cashier of any other bank would, and he had never heard a cashier was held, liable for the notes signed by him-.

The evidence given against Downing in this case, appears to be very weak; — as the testimony of Benoist, on which alone the case rests, is calculated to implicate Con-aut rather than Downing; 'but if he even had been prosecuted, it would seem hard to convict Rim, inasmuch as it does^ not appear from the testimony,- that he put the two notes into circulation, Benoist did not ask him to sell or exchange a note with him. From the manner in which Benoist addressed him, a plain man would suppose that Benoist only asked to be permitted to keep one of them a short time, for the gratification of the curiosity of Mulligan; and the circumstance that Benoist handed him a five dollar, Illinois note did not seem calculated altogether to rebut the presumption. The scene is closed and the offence consummated, by the act of sending Conaut another Illinois note. Conaut certainly was at liberty to go and demand his paper, and to consider the Illinois note left with him as a pledge for the return of the other notes. We might indeed congratulate ourselves on the good dispositions of our population, ii no stronger evidence of a disposition to offend against the laws of the land could be found. But how is Downing connected with this of-fence against the statute? He was a resident in-Michigan, and last summer, a. few weeks before the finding of this bill, he had been in St. Louis, which had once been his place of residence, and had there held a conversation with Benoist, in which he requested B’s opinion in regard to_' his, D’s liability to pay the notes of the Illinois Savings Bank, signed by him as cashier or secretary.— But Conaut was president of the same bank,andas such, had signed the notes; and he had tried to persuade two other brokers in St* Louis to redeem the notes of the II-*575linois Savings Bank. It appears to me to be a difficult matter, to strain the act of Conaut in giving the two notes of the Savings Bank to Benoist for the gratification of Mulligan’s curiosity, into an offence against the “act to suppress private bank notes,” even when we connect this act with his conversations with Benoist, and his alleged attempts to persuade the two brokers to redeem those notes. But if we consider that Downing is not, by the evidence, made an associate in this act of Con-aut, nor privy to his conversation even, it would seem that the jury ought to have had no scruple to find him not guilty. The circuit court should then, in my opinion have granted a new trial.

An indictment describing a note as purporting w be erfwhen, on its face,it purports to be payable to bear-cr’18 a '

The defendant moved also in arrest of judgment, assigning for reason, that the indictment does not charge the offence prohibited by the statute. The statute is in these words, viz: No person unauthorized by law, shall intentionally create, or put in circulation as a circulating medium, any note, bill, check or ticket, purporting that any money will be paid to the receiver or holder thereof, &c. — See Digest of 1835, p. 96.

The indictment charges that Downing did, &c. put in circulation as a circulating medium, a certain note, purporting that five dollars will be paid to the holder thereof. The note given in evidence purported to be payable to hearer. It is certain that the legal effect oí the note as set out in the indictment, and as it is proved, is the same. But as it was attempted to describe the note, not according to its legal effect, but to describe it as it existed, it should have been so done. That such is the true meaning of the word “purport?’ is sufficiently established by authority — see Russell on crimes, vol. 2, p. 361-2-3.— One of the cases there cited, is this: an indictment was found for forging an acceptance of a bill of exchange, of which the following is a copy: “Forty days after date, pay to Jeremiah Reading or order, the sum of £80, for value received, and place it to the account of John White. To John Ring, Berkley street,&c.” And the indictment charged that the prisoner having such bill in his possession, purporting to be signed by one John White, and to be directed to one John King, by the name, and description of one John Ring, of Berkley street, &c.— forged an acceptance in writing, purporting to be an acceptance of the said John King. The bill when produced, appeared to be accepted on the back of it, by John King, and it was proved that when the prisoner negotiated the bill, he stated the Mr. King was a gentleman liv*576ing in Berkley street, and a man of opulence; but in fact, there was no person of that name living there. The prisoner having been found guilty, the case was submitted to the consideration of the Twelve Judges, who determined that the judgment ought to be arrested, on the ground, that the bill did not in fact purport to be directed to one John King, as stated in the indictment. Buller, Judge, in delivering the opinion of the Judges said, it is clear, that where an instrument is to be set forth, the description that it purports a particular fact, necessarily . means, that what is stated as the purport of the instrument, appears on the face of the instrument itself.

In the case before this court, the indictment charges that Downing put in circulation, &c.. a certain note, purporting that five dollars will be paid to the holder thereof, and the note offered in evidence purported that five dollars would be paid to the hearer thereof. This is clearly a wrong description of the note, and for this reason, the judgment ought, in my opinion, to have been arrested. Being then of opinion, that a new trial ought to have been granted, and that the judgment also, ought to have been arrested, and the presiding Judge concurring in that ^opinion, the judgment of the circuit court is reversed.

MeGms, Judge.

I concur in the foregoing opinion.

Citation profile

How this case has been treated — in progress