STONE, J.
— In Culp v. The State, 1 Porter, 33, it was declared, “that at common law, a abose in action is not the subject of larceny.” In the same case it was said, that bank-notes were not within the purview of the act of 1807, which provided for the punishment of larceny of promissory notes. It was not in terms said that bank-bills are not personal property, but that was the effect of the decision. Thornton, J., who delivered the opinion of the court, offered neither argument nor authority in support of it..
Under the rules of the common law, it will be remembered, that only personal goods can be tbe subject of larceny. Since the introduction and use of bank-bills as a circulating medium, the question of their classification has frequently been mooted. The various decisions on this question can not be reconciled. In form, they are choses in action; while in their uses and effect, they supply the place of money. They are even a good tender as money, unless objected to on that account. Some courts have held, that they may be the subject of common-law larceny; while others have decided differently. — See the authorities collected in Bishop’s Cr. Law, §§ 219, 220, and notes. Even this vigorous author, Mr. Bishop, does not assert it as an undisputed proposition, that current bank-bills are not embraced in the term personal chattels.
Long after the decision in Culp’s case, the question came before this court, to what extent can current bank-bills be considered as money ? Judge Ormond,In an able opinion, after asking the question, “what is entitled to be considered -money,” used the following language: “In the present highly commercial condition of society, and under the influence of the credit and banking systems, which, by excluding the precious metals from general use, has made the paper which occupies its place the actual medium of exchange, and the representative of the labor and property of the country, it would be strange if the executive officers of the law had not power to receive it in payment of a judgment. The commercial character of the age has silently produced a change in our language. No one is misunderstood, or suspected of telling a falsehood, when he speaks of having money in his possession, [339]*339though it consists entirely of bank-notes. It has worked a corresponding change in the common law, accommodating itself to the altered condition of society. In the great case of Miller v. Race, 1 Burr. 457, which was trover for a bank-note which had been stolen, and which came to the possession of the defendant for a valuable consideration, and without notice of the robbery, Lord Mansfield said, that bank-notes ‘were as much money as guineas themselves are, or any other current coin that is used in common payments as cash or money.’ ’ So they are a good tender, unless they are objected to at the time. Under the term money, in a will, bank-notes will pass.” — Haynes v. Wheat & Fennell, 9 Ala. 239. It was held that, although the sheriff had authority to receive only money in payment of an execution, and the plaintiff could require of such sheriff coin; yet, if the sheriff received from the defendant current bank-bills which were circulating as money, and returned the execution satisfied, he thereby discharged the defendant from the payment of the debt, and fixed a liability for the same on himself and sureties.
In the case of the United States v. Moulton, 5 Mason, 537, the defendant was indicted for taking and carrying away, with intent to steal and purloin, certain bank-bills, the personal goods of another. Judge Story, in an elaborate opinion, held, that bank-bills were personal goods, and the subject of larceny.
In Rex v. Mead, 5 Car. & Payne, 535, (S. C., 19 Eng. Com. Law, 514,) the same doctrine was asserted.
In Greeson v. The State, 5 How. (Miss.) 33, it was held, that bank-bills are the subject of larceny, and are well described by that style.
The above array of highly respectable authorities are strongly persuasive to show that bank-bills are personal chattels, and have an intrinsic value.
But, independent of authority, we think the argument is decidedly in favor of this view. True, they are not, technically, money. They can not be made a legal tender in payment of debts. But they are more than simple choses in action. They furnish a standard of value in the commerce of the world. They pass from hand to hand [340]*340without endorsement; are alike available in the bands of each and every bolder, and are not subject to defenses of payment, discount, and set-off, as cboses in action generally are. After they are redeemed, they may be again put in circulation, and, on each re-issue, are as binding as when first issued.
The above are properties, not of cboses in action, but of a circulating medium. They prove that bank-bills, which are the issue of banks not entirely insolvent, which are genuine, and whose circulation is not prohibited by statute, have an intrinsic value, and are strictly personal goods. We hold, that they may be the subject of larceny under section 3170 of the Code. — See, also, Crane v. Freeze, 1 Harr. 305; Dolby v. Mullins, 3 Humph. 437 ; Steele v. Brown, 2 Virg. Cas. 246 ; Means v. Vance, 1 Bailey, 39; McGee v. Cherry, 6 Geo. 550; Turner v. Fendall, 1 Cranch, 117; Brooks v. Thompson, 1 Root, 216; Prentiss v. Bliss, 4 Verm. 513.
We think there was no error in permitting the witnesses Spalding and Claneey, to speak as they did of the bank-bills alleged to have been stolen. It is true that, to justify a conviction, it was necessary to prove that the banks had a legal existence, and that these notes were issued by them. Their value depended on this. Yet the production of the act of incorporation, and proof of the handwriting of the officers, was not the only mode by which these facts could be established. If such were the rule, there could rarely be a conviction for larceny of bank-bills issued in another State. Another reason: Few business men, in this banking age, take note of the particular bank whose bills they hold; suppose the thief should secrete or make way with the stolen bills; the rule contended for would necessarily lead to an acquittal, in almost every case.
The questions, whether the notes were genuine, and of value, were for the jury; and we think there was enough evidence in this case, to justify the court in submitting its effect to that body. — See on this point, Johnson v. The People, 4 Denio, 364 ; The State v. Smart, 4 Rich. Law R. 356; U. S. v. Holtzclaw, 2 Hayw. 379; Barnum v. [341]*341Barnum, 9 Conn. 242; Commonwealth v. Smith, 6 Serg. & Rawle, 568.
The first and third affirmative charges are erroneous. The first ignores-the question of property in Spalding, and the third declares that certain hypotheticated facts would make a prima-facie case. The evidence should have oeen left to the jury for their determination, under an appropriate charge. It was not of that character which authorized the court to pronounce on its sufficiency, however the jury might view it. — Ogletree v. The State, 28 Ala. 693.
It was certainly the right of the defendant to have the jury instructed on the measure of proof necessary to his conviction. The rule is correctly laid down in Mickle v. The State, 27 Ala. 20 ; Ogletree v. The State, supra.
We do not subscribe to the doctrine, to the extent it is asserted in the first charge asked by defendant, and refused by the court. That proposition was asserted in the case of the King v. Jones, 2 Car.
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STONE, J.
— In Culp v. The State, 1 Porter, 33, it was declared, “that at common law, a abose in action is not the subject of larceny.” In the same case it was said, that bank-notes were not within the purview of the act of 1807, which provided for the punishment of larceny of promissory notes. It was not in terms said that bank-bills are not personal property, but that was the effect of the decision. Thornton, J., who delivered the opinion of the court, offered neither argument nor authority in support of it..
Under the rules of the common law, it will be remembered, that only personal goods can be tbe subject of larceny. Since the introduction and use of bank-bills as a circulating medium, the question of their classification has frequently been mooted. The various decisions on this question can not be reconciled. In form, they are choses in action; while in their uses and effect, they supply the place of money. They are even a good tender as money, unless objected to on that account. Some courts have held, that they may be the subject of common-law larceny; while others have decided differently. — See the authorities collected in Bishop’s Cr. Law, §§ 219, 220, and notes. Even this vigorous author, Mr. Bishop, does not assert it as an undisputed proposition, that current bank-bills are not embraced in the term personal chattels.
Long after the decision in Culp’s case, the question came before this court, to what extent can current bank-bills be considered as money ? Judge Ormond,In an able opinion, after asking the question, “what is entitled to be considered -money,” used the following language: “In the present highly commercial condition of society, and under the influence of the credit and banking systems, which, by excluding the precious metals from general use, has made the paper which occupies its place the actual medium of exchange, and the representative of the labor and property of the country, it would be strange if the executive officers of the law had not power to receive it in payment of a judgment. The commercial character of the age has silently produced a change in our language. No one is misunderstood, or suspected of telling a falsehood, when he speaks of having money in his possession, [339]*339though it consists entirely of bank-notes. It has worked a corresponding change in the common law, accommodating itself to the altered condition of society. In the great case of Miller v. Race, 1 Burr. 457, which was trover for a bank-note which had been stolen, and which came to the possession of the defendant for a valuable consideration, and without notice of the robbery, Lord Mansfield said, that bank-notes ‘were as much money as guineas themselves are, or any other current coin that is used in common payments as cash or money.’ ’ So they are a good tender, unless they are objected to at the time. Under the term money, in a will, bank-notes will pass.” — Haynes v. Wheat & Fennell, 9 Ala. 239. It was held that, although the sheriff had authority to receive only money in payment of an execution, and the plaintiff could require of such sheriff coin; yet, if the sheriff received from the defendant current bank-bills which were circulating as money, and returned the execution satisfied, he thereby discharged the defendant from the payment of the debt, and fixed a liability for the same on himself and sureties.
In the case of the United States v. Moulton, 5 Mason, 537, the defendant was indicted for taking and carrying away, with intent to steal and purloin, certain bank-bills, the personal goods of another. Judge Story, in an elaborate opinion, held, that bank-bills were personal goods, and the subject of larceny.
In Rex v. Mead, 5 Car. & Payne, 535, (S. C., 19 Eng. Com. Law, 514,) the same doctrine was asserted.
In Greeson v. The State, 5 How. (Miss.) 33, it was held, that bank-bills are the subject of larceny, and are well described by that style.
The above array of highly respectable authorities are strongly persuasive to show that bank-bills are personal chattels, and have an intrinsic value.
But, independent of authority, we think the argument is decidedly in favor of this view. True, they are not, technically, money. They can not be made a legal tender in payment of debts. But they are more than simple choses in action. They furnish a standard of value in the commerce of the world. They pass from hand to hand [340]*340without endorsement; are alike available in the bands of each and every bolder, and are not subject to defenses of payment, discount, and set-off, as cboses in action generally are. After they are redeemed, they may be again put in circulation, and, on each re-issue, are as binding as when first issued.
The above are properties, not of cboses in action, but of a circulating medium. They prove that bank-bills, which are the issue of banks not entirely insolvent, which are genuine, and whose circulation is not prohibited by statute, have an intrinsic value, and are strictly personal goods. We hold, that they may be the subject of larceny under section 3170 of the Code. — See, also, Crane v. Freeze, 1 Harr. 305; Dolby v. Mullins, 3 Humph. 437 ; Steele v. Brown, 2 Virg. Cas. 246 ; Means v. Vance, 1 Bailey, 39; McGee v. Cherry, 6 Geo. 550; Turner v. Fendall, 1 Cranch, 117; Brooks v. Thompson, 1 Root, 216; Prentiss v. Bliss, 4 Verm. 513.
We think there was no error in permitting the witnesses Spalding and Claneey, to speak as they did of the bank-bills alleged to have been stolen. It is true that, to justify a conviction, it was necessary to prove that the banks had a legal existence, and that these notes were issued by them. Their value depended on this. Yet the production of the act of incorporation, and proof of the handwriting of the officers, was not the only mode by which these facts could be established. If such were the rule, there could rarely be a conviction for larceny of bank-bills issued in another State. Another reason: Few business men, in this banking age, take note of the particular bank whose bills they hold; suppose the thief should secrete or make way with the stolen bills; the rule contended for would necessarily lead to an acquittal, in almost every case.
The questions, whether the notes were genuine, and of value, were for the jury; and we think there was enough evidence in this case, to justify the court in submitting its effect to that body. — See on this point, Johnson v. The People, 4 Denio, 364 ; The State v. Smart, 4 Rich. Law R. 356; U. S. v. Holtzclaw, 2 Hayw. 379; Barnum v. [341]*341Barnum, 9 Conn. 242; Commonwealth v. Smith, 6 Serg. & Rawle, 568.
The first and third affirmative charges are erroneous. The first ignores-the question of property in Spalding, and the third declares that certain hypotheticated facts would make a prima-facie case. The evidence should have oeen left to the jury for their determination, under an appropriate charge. It was not of that character which authorized the court to pronounce on its sufficiency, however the jury might view it. — Ogletree v. The State, 28 Ala. 693.
It was certainly the right of the defendant to have the jury instructed on the measure of proof necessary to his conviction. The rule is correctly laid down in Mickle v. The State, 27 Ala. 20 ; Ogletree v. The State, supra.
We do not subscribe to the doctrine, to the extent it is asserted in the first charge asked by defendant, and refused by the court. That proposition was asserted in the case of the King v. Jones, 2 Car. & Payne, 629; but we think it is well calculated to mislead a jury. We do not deny the doctrine, that when a confession is given in evidence against a defendant, it is his right to have the whole conversation laid before the jury, and considered by them. It does not follow, however, that “if there be either no other evidence in the case, orno other evidence incompatible with it, the declaration so adduced in evidence must be taken as true.” The declaration or confession may be incompatible with itself, or may be so unreasonable, as to tax credulity too far.
We hold, that the defendant has all his rights, in this connection, when the entire conversation is laid before the jury, and they are instructed to give it a fair and unprejudiced consideration. Of course, that body will not, and should not without reason, believe that portion which makes against the prisoner, and reject all which favors his innocence. — See Phil. Ev. (edition by Van Cott,) part I, pp. 421, 422.
On another trial, it would be well for the pi’osecution to trace the bank-bills as far as they are traceable, before offering secondary evidence of their contents. We do not, [342]*342however, announce this as a legal necessity, but withhold our opinion upon this question.
Judgment of the circuit court reversed, and cause remanded. Let the prisoner remain , in custody, until discharged by due course of law.