275 F. 187 | 7th Cir. | 1921
Plaintiff in error was convicted on two counts of an indictment which charge or attempt to charge him (a) with publishing, uttering, and passing a falsely altered and spurious Federal Reserve bank note with guilty knowledge, and (b) with having in his possession a falsely altered and spurious bank note.
[ 1 ] The latter count is challenged because no violation of any statute-of the United States is disclosed. We think the exception well taken.
Nowhere in this count is it alleged that plaintiff in error knew that the bank note in his possession was altered or spurious. This was a fatal omission. U. S. v. Carll, 105 U. S. 611, 26 L. Ed. 1135. The count of the indictment here under consideration is not as full or complete as the one condemned in the Carll Case.
Neither in the government’s brief nor on the oral argument do we find a serious attempt to justify or excuse the absence of this necessary allegation.
The other count upon which plaintiff in error was convicted we quote in full:
“And the grand jurors aforesaid, upon tlieir oatlis aforesaid, do further present that Elzey B. Hill, alias Edward G. Howe, on, to wit, the 7th day of July, in the year of our Lord one thousand nine hundred nineteen, at East St. Louis, in the county of St. Glair, in the state of Illinois, in the Eastern district aforesaid, and within the jurisdiction of said court, did then and there willfully, knowingly, falsely, unlawfully, and feloniously publish, utter, and pass to Walter J. Gillen as true and genuine a certain falsely altered and spurious circulating bank note, to wit, a certain Federal Reserve bank note,, which had been issued by the Federal Reserve Bank of St. Louis, Mo., to pay to the bearer on demand the sum of $1, but which had been falsely altered so-that the bank note purported to be a bank note issued by the Federal Reserve Bank of St. Louis, Mo., of the denomination of and constituting a contract of said Federal Reserve 'Bank of St. Louis, Mo., to pay to the bearer on demana the sum of $10, the face of which said altered Federal Reserve bank note is in words and figures following: [Photograph of face of note]—and the-back of which said altered Federal Reserve bank note is in words and figures following: [Photograph of back of note]—he, the said Elzey B. Hill, alias Edward G. Howe, then and there well knowing that said Federal Reserve bank note had been falsely altered as aforesaid, with the intent in him, the said Elzey B. Hill, alias Edward G. Howe, to damage and defraud the said Walter J. Gillen, contrary to the form of the statute in such case made and provided and against the peace and dignity of the United States.”
Counsel for plaintiff in error vigorously attacked this count on numerous grounds. Unfortunately we have no assistance from counsel for the government. To all intents and purposes, the government has-defaulted, resting its case on an assertion that it “expresses the confident expectation that we will not be able to find reversible error in-the record.” These confident assurances can hardly be accepted, as an-answer to the specific and well fortified criticism of opposing counsel.
It is claimed that a photographic representation of the altered instrument does not sufficiently apprise the accused of the offense with which lie is charged so that he may prepare himself to meet the issue. It might have been the safer practice to set forth either by precise words or by exact copy the bank note as it appeared originally and the bank note as it was altered. But we are not satisfied that this was not in substance what was done. The P'ederal Reserve Bank Act prescribes that “the comptroller of currency shall * * * cause plates and dies to be engraved in the best manner to guard against counterfeits and fraudulent alterations, and shall have printed therefrom and numbered such quantities of such notes of the denominations * * * as may be required,” etc. Section 9799, subd. 9, United States Comp. St. Ann. Supp. 1919. Other provisions may be found in the statutes concerning these matters. Examination of the indictment shows that the altered note was truly set forth, and it clearly appears that before altered it was the usual form of Federal Reserve bank note. It also further appears that the alteration consisted of a change from $1 to $10.
We have, therefore, a situation where the pleader, in apprising the accused of the nature of his offense, described with great particularity and accuracy the altered Federal Reserve bank note. Accused was also told of some of the material changes made in the original note, and by reference to an original bank note (specific and detailed in view of the statutes) was fully informed as to the alterations.
In other words, where the statute and extensive general use accurately and fully informs an individual of the language, form, and appearance of a lawful P'ederal Reserve bank note, and the fraudulently altered note is set forth by way of a photograph, the accused is apprised of the situation as fully and fairly as if the pleader had in addition pointed out and enumerated the differences between the original and the altered note. As these Federal Reserve bank notes of any single denomination are all similar, and as they are in most extensive circulation, we think the plaintiff in error can hardly urge surprise or failure to inform him of the crime which he was called upon to meet.
This conclusion is more readily reached because the gist of the offense is not the altering of a bank note, but in uttering a fraudulently
For whose protection was this law enacted? For the discerning and discriminating alone? Are the illiterate and inexperienced to be left with no protection? Obviously not. Certainly Congress never intended that liability could be avoided provided the criminal’s work was so coarse and crude that only children, the unwary, or the uneducated or the inexperienced, or the trusting and confiding citizen would be deceived thereby. In order to secure protection against one who utters a forged note, must the individual know that upon one side of the Federal Reserve bank note of the denomination of $1 is the picture of George Washington, while on the face of the $10 note there appears the likeness of Andrew Jackson? And must he know that on the other side of the $1 note appears the picture of an American eagle, while on the opposite side of the $10 note appears a harvest scene? Or, to be more particular, must one seeking protection against the fraud of another be chargeable with the knowledge that on the Federal Reserve note, near the figures “1” as they appear on the same side as the picture of Washington there also appears the word “one” while on the opposite side no such word “one” appears near the figure “1”?
[B] Finally, it is argued that the government failed to show that the alleged bank note in question was, before it was altered, the genuine bank note of the St. Louis Federal Reserve Bank. This objection is well taken. Nowhere have we found any evidence tending to establish the genuineness of this bank note before alteration. True, tbe language and appearance of the body of the note is that of a Federal Reserve bank note. But of what bank? Until properly signed and issued by a Federal Reserve hank, such a piece of paper is not a bank note. The crime charged was not committed unless it is shown that the alterations were on a duly issued Federal Reserve bank note.
The judgment is reversed, and a new trial on count 4 of the indictment ordered.