64 F. 110 | N.D. Cal. | 1894
This case came up on a demurrer to the indictment pending against the defendant, Martin D. Howell. He is charged, under sections 5431, 5157, Rev. St. U. S., with having in his jiossession and passing counterfeit notes and obligations and coins of the United States. A general demurrer is interposed to the indictment as a whole, and also specifically to each count thereof, 35 in number. It will, however, only he necessary to consider the objections urged to the eighth, thirteenth, and fourteenth counts, the demurrer being, as to the other counts, without merit. The three counts just referred to relate to counterfeit United States notes. The specific objections urged against these three counts are substantially: First, that the alleged counterfeit; notes, claimed to have been in the possession of the defendant, are not sufficiently described; second, that no legal excuse is given why said alleged counterfeit notes are not more particularly described, and copies thereof inserted in the indictment. A third objection is made, which, however, goes only to the eighth and fourteenth counts, and that is that the acts therein charged are barred by the statute of limitations of the United Ktates applicable to offenses not capital. In this respect it is sufficient to indicate that section 1044, Rev. St. IJ. S., which formerly provided a two-years limitation as to offenses other than capital, was amended in 187(5, and the limitation enlarged to three years. Tested by the latter limitation, the acts charged are not barred from prosecution. Recurring to the other two objections made to the eighth, thirteenth, and fourteenth counts, it might be well briefly to refer to these three charges as they are set out in the indictment. That part of the eighth count, which, is material to the questions raised by the demurrer, is as follows:
“Ihat Martin D. Howell * * * on the 25th day of February, 3802, at the city of Stockton, county of San Joaquin, * * * did then and there knowingly, willfully, and fraudulently and feloniously keep and have in his possession three certain false, forged, and counterfeit notes and obligations of the United States of America, to wit, three certain false, forged, and counterfeit United States note's, each of said false, forged, and counterfeit notes purporting to he a United States note of the denomination of five dollars, issued by and under the authority of the laws of the United States (a more particular description of which said false, forged, and counterfeit notes and obligations is to the grand jurors aforesaid unknown). * * *”
“And the grand jurors aforesaid, on their oath aforesaid, do further present and say that the said, false, forged, and counterfeit notes and obligations so kept and had in the possession of the said Martin D. Howell as aforesaid are not, and each of them is not, more particularly described herein, and copies thereof, and the tenors thereof, respectively, and of each thereof, are and is not herein set forth, for the reason that the grand jurors aforesaid have no knowledge or information as to where, in whose possession, or under whose control the said false, forged, and counterfeit notes and obligations, and each thereof, now are and is, and have and has been since the same were and was so kept and had in the possession of the said Martin D. Howell, as aforesaid,” etc.
The thirteenth and fourteenth counts charge the defendant with passing separate counterfeit United States notes on two different occasions. The description of these United States notes is similar to that just quoted from the eighth count, hut the reasons for not setting them out more particularly are somewhat different. The excuse contained in the thirteenth count is that the note therein referred to was returned to the defendant before the finding and presenting of the indictment, wfithout the knowledge, connivance, or direction of the grand jurors, or any of them, or of the United States attorney for this district, or of any one on their or his behalf; and that they or any of them have no knowledge or information as to where, in whose possession, or under whose control the counterfeit note and obligation now is, or has been, since its said return. The excuse for not setting out more particularly a description of the counterfeit note in the fourteenth count is, briefly, that it was destroyed and wholly lost before the finding and presenting of the indictment. To recapitulate, in the eighth count the reasons given for not setting out the three counterfeit United States notes which are the subject of that charge according to their tenor, or more particularly, is that the grand jurors had them not in their possession or under their control; in the thirteenth count, that the counterfeit United States note was returned to the defendant before the finding and presenting of the indictment; and in the fourteenth count, that the counterfeit note therein referred to has been destroyed. I entertain no doubt that the excuses tendered and the reasons given therefor and contained in the three counts of the indictment, to which' objections have been raised, are legally sufficient. While it is a stringent rule of criminal pleading that forged and counterfeited instruments or writings, which form the gravamen of the offense, must be set out in an indictment or information according to their tenor, yet there are circumstancés constituting exceptions which compel a relaxation of this general rule. The authorities and text-books segregate the exceptions into the following general classes: (1) Where the prosecution has not in its possession, and is unable to procure, the instrument or writing; (2) where it has been destroyed or lost; (3) where it is in the possession of the defendant. Com. v. Houghton, 8 Mass. 107; State v. Potts, 9 N. J. Law, 26; People v. Kingsley, 2 Cow. 522; State v. Gustin, 5 N. J. Law, 744; State v. Parker, 1 D. Chip. 298; People v.
We now proceed to the second proposition. It is contended by counsel for defendant that the description of the notes is insufficient to apprise the defendant as to the particular kind of obligation or security of the United States he is charged with possessing and passing in violation of law. The chief object of an indictment or information is to apprise the defendant; clearly and fully with what he is accused, so that he may prepare for his defense, and also, in case of Ms conviction or acquittal, avail himself of (hat fact to he protected from further prosecution. U. S. v. Cruikshank, 92 U. S. 542, 558. Would the averments of the indictment in the three counts referred to relating to the description of the counterfeit United States notes subserve these objects? I think they would. Analyzing the three counts objected to (and in this respect they are all identical), and we find (1) that the particular kind of obligation of the United States is specified, and (2) the denomination of such obligation is set out. It is averred in all three (-omits that the counterfeit obligations of the United States which the defendant is accused of possessing and passing purported to be United States notes, and that they were of the denomination of live dollars. It must be remembered, in this connection, that United States notes are not