United States v. Howell

On a certificate of division between the judges of the Circuit Court for the District of California.

Howell was indicted for passing counterfeit treasury notes, under the sixth section of the act of February 25th, 1862, which provides:

'That if any person or persons shall falsely make, forge, counterfeit, or alter, or cause or procure to be falsely made, forged, counterfeited, or altered, or shall willingly aid or assist in falsely making, forging, counterfeiting, or altering any note, bond, coupon, or other security issued under the authority of this act, or heretofore issued under acts to authorize the issue of treasury notes or bonds; or shall pass, utter, publish, or sell, or attempt to pass, utter, publish, or sell, or bring into the United States from any foreign place, with intent to pass, utter, publish, or sell, or shall have or keep in possession, or conceal with intent to utter, publish or sell, any such false, forged, counterfeited, or altered note, bond, coupon, or other security, with intent to defraud any body corporate or politic, or any other person or persons whatsoever, every person so offending shall be deemed guilty of felony, and shall, on conviction thereof, be punished by fine not exceeding $5000 and by imprisonment and confinement to hard labor not exceeding fifteen years, according to the aggravation of the offence.'

The indictment contained two counts.

The first count charges that the defendant 'feloniously did pass, utter, publish, and sell, a certain false, forged, and counterfeited United States note, purporting to be a United States note issued under the authority of' said act, with intent to defraud, &c., well knowing the same to be false, forged, and counterfeited.

The second charged that the defendant 'feloniously did pass, utter, publish, and sell, a certain false, forged, and counterfeited treasury note, issued under the authority of' said act, with intent to defraud, &c., well knowing the same to be false, forged, and counterfeited.

Demurrer to the indictment and joinder. Afterwards, on argument, the following questions occurred:

'1. Whether the second count in the indictment, in manner and form as therein stated, is in itself repugnant.

'2. Whether the sixth section of the act is repugnant; and whether any person could, under the said act, be legally convicted of and punished for any offence whatever other than that of altering, and causing and procuring to be altered, and willingly aiding and assisting in altering a note, bond, coupon, or other security issued under authority of said act.

'3. Whether the fourth paragraph or clause of the sixth section of the act, which is in the words following, to wit:

"Or shall pass, utter, publish, or sell, or attempt to pass, utter, publish, or sell, or bring into the United States from any foreign place, with intent to pass, utter, publish, or sell, or shall have or keep in possession, or conceal, with intent to utter, publish or sell, any such false, forged, counterfeited or altered note, bond, coupon, or other security, with intent to defraud,'

&c., is repugnant.

'4. Whether the defendant could, under the said fourth paragraph or clause, be legally convicted of and punished for uttering or passing a forged or counterfeit note purporting to be a United States or treasury note issued under authority of said act.

'5. Whether he could, under the said fourth paragraph or clause, be legally convicted of and punished for any offence whatever, other than 'passing, uttering, publishing, or selling,' &c., an 'altered note, bond, coupon, or other security," &c.

On each of which questions the opinions of the judges were opposed. Whereupon the disagreement was certified to this court.

Mr. D. T. Sullivan, for the prisoner:

First. The indictment is repugnant and inconsistent in itself.

How could the note be a 'false, forged, and counterfeit' note if it was issued under the authority of an act of Congress? The object of issuing treasury notes is that they may be 'passed, uttered, published, and sold;' and how can the defendant, Howell, be guilty of a criminal act by doing that which it was the very object of the act should be done? The use of the adjectives 'false, forged, and counterfeit' are inconsistent with and repugnant to the allegation that the note was issued under proper authority; nor are qualifying words of themselves, even if there be no repugnancy or inconsistency in the indictment, sufficient to make a criminal offence.

Second. The statute under which the indictment is framed, or at least so much thereof as relates to the charge of 'passing, uttering, publishing, and selling' the note in question, is repugnant and void.

The United States v. Cantrell, is in point. Cantrell was indicted under act of Congress of June 27th, 1798, for 'uttering, passing,' &c., a ten dollar note, 'purporting to be' a note 'issued by order of the president,' &c., of the bank. The words 'purporting to be' were not in the statute, nor were there any words such as are usually found in statutes of this character; as, for instance, 'in the similitude of,' 'in imitation of,' or others pointing against the disposing and putting off of notes which have not been issued by competent authority. The counsel for Cantrell made the objection which we take here, that the statute was fatally defective in not containing these or similar words, and the whole court, through Marshall, C. J., adjudged the objection to the statute to be well taken, and for that reason ordered that the judgment be arrested.

Mr. B. H. Bristow, Solicitor-General, contra.

Mr. Justice MILLER delivered the opinion of the court.