26 F. Cas. 324 | U.S. Circuit Court for the District of New Jersey | 1831
Where the addition, omission or change of a letter makes a word different in sense and grammar, as “nor” for “not” (2 Salk. 660), or a different name, as “King” for “Ring” (1 East, 180. note), or another word, the variance is fatal; but where the word is not changed, as “under-tood” for “understood,” the variance is not material (Cowp. 229). When an instrument is recited in the indictment as purporting to be, &c., it refers to what appears on the face of the instrument, which must correspond with the indictment (Doug. 289, 302; 1 East, 180. note); but the indictment in this case does not so set it out. Where the variance is plain, the court will decide the question by rejecting the evidence, where it is doubtful they will refer it to the jury, whose decision will be conclusive; as if an indictment lays a bank note to be signed “J. Reed,” and the note produced is signed “J. Read” (4 Halst. [9 N. J. Law] 32); in which case the jury were instructed to find whether both names were the same. It is in evidence that there is a branch of the Bank of the United States at Fayetteville, North Carolina, of which John Hulse is president and J. W. Sandford cashier; and the order purports to have been drawn there. It is therefore a proper case for the jury to decide on a comparison of the order with the indictment, whether the place and the names are the same. Tfiere is no rale of law that the omission to cross a “t” or dot an “i" makes words different from their obvious intendment, the shape of the marks denoting a letter, whether it is an “o" or an “a.” is a matter of fact and intention. We cannot- judicially say that because the district attorney did not draw a line across the letter “1” the indictment cannot in law mean Fayetteville; or because in referring to the name of the president of the bank, he wrote “Jna.” instead of “Jno.,” it is not for us to measure the lines and curves of a letter, to ascertain whether it lb an “a.” an “o” or any other letter. If they may be reasonably taken to mean either, the jury are at liberty to adopt such as seems to them to comport with the obvious intention of the writer; and they ought to have evidence that there is a bank at Fayetteville, of which some other person than John Hulse is president, before they can decide, that the place where the order was drawn, and the pei'son drawing it. are not as laid in the indictment. The indictment follows the words of the law, defining the offence to be, “or shall pass any false, forged or counterfeited order or check upon the said Dana or corporation, or any cashier thereof.” The corporation is created by law, by the name and style of the “President, Directors and Company of the Bank of the United States.” 3 Story’s Laws, 1550 [3 Stat. 268]. The cashier of the bank is the cashier of the corporation, and an order or check drawn on him is drawn on the coiporation, or a cashier thereof. We are therefore of opinion that the indictment is well drawn ([U. S. v. Gooding] 12 Wheat. [25 U. S.] 474), and that the order ought to be received in evidence.
The admission of the bundle of notes found on Moore depends on the fact of a concert and communication between him and the defendant in passing counterfeit notes or orders; if they had made a common or concerted cause, in which each had his part to act, or they in any way acted together in pursuance of any agreement or understanding, each is answerable for the acts of the other, as fully as if done by himself. The whole conduct, acts and declarations of the one, accompanied with acts, are evidence against the other. It is not for us to decide how, for the connection between Moore and Hinman is proved; but as there has been enough of evidence given of concert and joint action as conduces to prove the fact, a prima facie case is so far made out as to make it proper to submit it to the jury. If they' are satisfied that there was a concert of action for the effecting the common object of passing the counterfeit orders, their possession by Moore is in law the possession of Hinman ([U. S. v. Gooding] 12 Wheat. [25 U. S.] 468, 470); and they may infer the scienter as if they had been found on him.
Verdict, guilty.
