4 Rawle 464 | Pa. | 1834
The opinion of the Court was delivered by
The first error assigned in this case is, that the notes charged to have been stolen, are described as being “on the bank,” &c. instead of “ of the bank,” &c. It may be questionable whether the description contended for would have been much more accurate, or
The second error is, that the Bank of the United States, on which the notes charged to have been stolen are said to be, is not alleged to be duly incorporated. The case of Spangler v. The Commonwealth, 3 Binn. 533, has been cited and relied on to support this exception. This court held in that case, that it ought to appear on the face of the indictment, when notes alleged to be stolen, are the notes of a bank, that the bank was incorporated, or lawfully authorized to draw and issue such notes. It is necessary to observe, that the prosecution and decision in that case, were founded upon portions of acts of assembly which have since been repealed. The act of the thirtieth of January, 1810, declaring that “ the robbery or larceny of any bank note of any incorporated bank should be punished in the-same manner as the robbery or larceny of any goods or chattels of equal amount,” which was then in force, has since been repealed by an act of the tenth of March, 1817; which also enacts, that the “robbery or larceny of any promissory note or notes for the payment of money, shall be punishable in the same manner as the robbery or larceny of any goods or chattels.” And another act of the nineteenth of March, 1810, which was also then in force, declaring all unincorporated banks to be unlawful, and that all payments made or accepted in their notes should be null and void, has, as to this latter clause, been in some degree repealed by an act of the twenty-second of March, 1817, 6 Smith’s L. 444, which declares and makes all such notes recoverable : thus making them of a value equal to their nominal amount. The act of the fifth of April, 1790, as well as the act of the tenth of
The remaining error is, that the notes charged to have been stolen, are not described as being “due and unpaid.” In support of this, the dictum of the late Mr. Justice Dunoaw, in the case of Stewart v. The Commonwealth, 4 Serg. & Rawle, 195, and the indictments in one or two cases reported in Rogers’ Crim. Ca. (New York) where the notes charged to have been stolen appear to be so described, have been referred to. I consider even the dictum of that learned and eminent judge entitled to great respect, and sufficient at least to induce me to examine the matter closely, where it happens to be at variance with my own previous opinion on the subject, before I should be satisfied that I was right. The only reason, I apprehend, that can be given for making such an averment necessary in respect to the notes is, to show that they are of real value : because if paid, it might be said, perhaps, in most cases, that they could therefore be of no real value; and that it would not only be oppressive and highly unjust, but contrary to the spirit of our penal code, to make them the subject of larceny. It however, appears to me, that the description of the notes given in the indictment in this case, taken in connexion with the allegations therein contained in respect to them, show distinctly that they were of real, substantial value. I do not consider it at all necessary that an express allegation should be made in the indictment, that the notes were unpaid at the time they are alleged to have been stolen, because that circumstance forms no part of the description of the notes given in the act of assembly itself, that are thereby made the subject of-robbery or larceny. If the legislature in describing the notes that were thereby intended to be made the subject of robbery and larceny had used the term “ unpaid,” I am
Judgment affirmed.