2 Binn. 332 | Pa. | 1810
delivered the opinion of the court.
The defendant has been indicted and found guilty, of uttering and publishing as true and genuine, a forged note of the Bank of North America, knowing the same to be forged, with intent to defraud Joseph Simmons. A motion has been made in arrest of judgment, because the indictment does not conclude “ against the form of the act of assembly &c„” His counsel contend, that the offence charged in the indictment, is not indictable at common law; and that even if it was, no judgment inflicting the common law punishment can be given, because by the act of 21st March 1806, in cases where punishment is prescribed by act of assembly, no punishment shall be inflicted agreeably to the provisions of the common law. It is said, that for the offence charged in the indictment, there is a punishment provided by act of assembly; yet that punishment cannot be inflicted, because the' indictment makes no mention of the act of ..ssembly. Hence it is.inferred that no judgment can be given on the indictment. It will be necessary therefore to consider, 1st, Whether the offence is indictable at comm'on law. 2d, Whether it is punishable by any act of assembly. And 3d, Whether judgment for the punishment prescribed by act of assembly, can be rendered on this indictment.
1. It seems to have been the opinion of the old writers on criminal law, that forgery at common law could not be committed with respect to any writing of a private nature, unless the same was under seal. But this point was fully investigated, and decided to the contrary, in the case of The King v. Ward (2 Ld. Ray. 1461: 13 Geo. 1.); since which the law has been considered as settled. In that case, the indictment contained two counts; the 1st, for forging an unsealed writing, with intent to defraud the Duke of Buckingham, and the 2d, for publishing the same writing with the same intént. The court did not decide on the second count,because there was no occasion; but I can see-no reason, why the publication should not be indictable, as well as the forgery: every
2, We have no act of assembly expressly prohibiting the forging, or uttering of forged notes of the Bank of North America, But the act of 22d April 17"94, sect. 5, enacts, that every person who shall be convicted of having falsely Uttered,paid, or tendered in payment, any counterfeit or forged gold or silver coin, knowing the same to be forged or counterfeit, or shall be concerned in' printing, forging, or passing any counterfeit notes of the Banks of Pennsylvania, North America, or the United States, knowing them to be such, or altering any genuine notes of any of the said banks, shall be sentenced to a confinement in the gaol and penitentiary house, for any term not Jess than four, nor more than fifteen years §cc; The offence laid in the indictment does not come within this act, for the plaintiff- is not charged with passing, but only uttering and publishing, which is a different thing. The different expressions in this act, with respect to gold and silver coin, and bank notes, shew that the legislature
S. It remains to be considered, whether under this indictment we can give judgment for the punishment prescribed by the act of assembly. I take the law to be, that where a statute creates or expressly prohibits an offence, and inflicts a punishment, the indictment must conclude against the form of the statute. But where a statute only inflicts a punishment on that which was an 'offence before, there is no necessity of mentioning the statute. When an indictment charges a person with having done a thing against the form of the statute &c., the obvious meaning is that the offence was committed against the form of the statute, without any reference to the punishment. This seems to be Lord Hale's idea,, who says, “ if an offence be at common lazo and also ‘•‘■prohibited by statute, with a corporal or other penalty, yet “ it seems, the party may be indicted at common law; “ and then though it concludes not 'contra formam statute it “ stands as an indictment at common law, and can receive
Upon the fullest deliberation, the court are satisfied, that the judgment ought not to be arrested.
Motion overruled.
The defendant was afterwards sentenced to three years* imprisonment at hard labour.