| Mich. | Apr 25, 1860
The questions involved in this case arise upon the indictment and the special verdict.
The first and fourth counts charged, in substance, that the defendant, not being authorized • by law to do a regular banking business and to issue bank bills, “ did issue a certain draft in the similitude of a bank bill,” setting forth the draft.
The second count charges that defendant “ did issue a certain draft to be put in circulation as money.”
The third, that he “ did issue” the draft “ to be used as a currency or circulating medium.”
The fifth, that he issued ■ it, “ to be loaned or put in circulation as money;” and the sixth, that he issued it “ to pass or be used as a currency or circulating medium.” All the counts set forth the same draft in haeo verba.
All .these counts, then, charge the defendant with having “issued” the draft, and it is manifest from the statute upon which the indictment is founded (Gomp. L. §5899),
Have the jury, by their special verdict, found that the defendant issued the paper as set forth in any count of the indictment? This is the first question, and if decided in the negative no other question can properly arise.
The special verdict, so far as this point is involved, ■only finds that the defendant “ did pay out” the paper in question to one Miles Lattimer, on a check drawn upon the defendant.
The court can add nothing to this finding: they can draw only the legal conclusions from the facts found. No facts can be inferred by the court which the jury have not inferred and set forth; especially against a defendant in á criminal case. To this verdict the maxim applies, in its full force; “ de non apparentibas et non existentibus, 1eadem est ratio, et judieiumP
This verdict does not find that the defendant is the same person whose name purports to be signed to the acceptance set forth in the indictment, or that he had any connection with or interest in the “Savings and Exchange Bank of B. Wells,” upon which the draft purports to be drawn; nor .that he was a banker, or in any manner connected with, responsible for, or interested in the paper in question, except what is to be inferred from the single fact of paying it out upon a check drawn upon him.
None of these facts, which 'the verdict has omitted, can be supplied by the court.
We are compelled, therefore, to consider the defendant as no otherwise connected with, or responsible for, the issue of this paper, than any other individual would be by the naked fact of paying it out upon a check or order drawn upon him; and the question is whether such “pay
. We do not think this is the fair import of the term “issue” as here used.
. This section, so far as relates to the present question, is the same found in section five of chapter fifty of the Revised Statutes of 1846. The chapter is there entitled, “ Of unauthorized banking, and certain notes or evidences of debt issued by banks.’’ The amendment of 1853 (JDcms of 1853, p: 20), in no way affects the present question. An examination of the chapter, as it now stands (Comp. L. §§ 5895 to 5903) will, we think, show very clearly that the term is not used in the sense of merely passing, or paying out, by a person in no way a party to the paper, nor connected, as principal or agent, with its original issue, and who is to derive no profit or benefit from the illegal enterprise.
By the first section, “no person unauthorized by law, shall subscribe to, or become a member or in any way interested in, any association or company formed for the purpose of issuing notes or other evidences of debt, to be loaned or put in circulation as money; nor shall any person unauthorized by law subscribe to, or become in any way interested in, any bank or fund created or to be created for the like purposes, or either of them.”
Section two imposes a penalty for becoming a member of such company, or being interested in such fund.
Section three prohibits any incorporated company, not expressly authorized by law, from employing any part of its effects, or being in any way interested in, any fund that shall be employed for the purpose of receiving deposites, making discounts or issuing notes, or other evidences' of debt “to be loaned or put in circulation as money,” and inn poses a penalty for a violation of the section.
Section four declares all such notes, &c., mentioned in the preceding section, void.
This section distinguishes between the act of issuing by the parties interested, and the passing or circulating by other parties: the latter is stated as the purpose for which the former act is committed.
The sixth section prohibits any corporation, authorized to do a banking business, from making their bills payable in any thing but specie, or at any other place but their banldng house, &c.
By the seventh section it is enacted, “No person shall pay, give or receive in payment, or in any way circulate or attempt to circulate, any bank bill, promissory note or other evidence of debt, issued by any banking company, or by any other corporation within this state or elsewhere, which shall purport to be for the payment of a less sum than one dollar, or which shall be made payable otherwise than in specie on demand;” and imposes a penalty.
This section makes a clear and manifest distinction between the issuing and paying or circulating, and imposes a penalty for paying or circulating the paper there described, “issued by any banking company,” &c. If this section had been made applicable to the paper described in the fifth section, the special verdict would have brought the defendant within it. And if it had been intended to make the offense consist in the paying out or circulating the paper described in the fifth section, no good reason can be given why the Legislature should not have used language similar to that in the seventh section.
Upon a full examination of the statute, therefore, we think it too clear to admit of any reasonable doubt, that the special verdict in this case fails to bring the defendant within any provision of this statute, or any other statute of this state.
It must be certified to the Circuit Court for the county of Kent, as the opinion of this court, that upon the faots found by the jury, defendant is not guilty in manner and. form as charged in the indictment.