BAKER, Circuit Judge
(after stating the facts as above). Charges of misdemeanor and of felony were joined in the indictment, the jury returned their verdict in the form of, “We, the jury, find the defendant guilty,” and the court assessed the punishment for felony. Upon this, defendant insists that the judgment must be reversed because, matching the verdict with the indictment, it does not appear but that the jury intended only to find him guilty of misdemeanor. But we are of the opinion that the verdict should be read in the light of the record which defendant helped to make. The trial, with defendant’s acquiescence, was an investigation of an alleged misdemeanor and of two classes of alleged felonies. The misdemeanor charge was distinguished from the felony charges in the court’s instructions to the jury. Taking the instructions as a whole, we find that the court told the jury to return a verdict of guilty only on such count or counts as they believed beyond a reasonable doubt were sustained by the evidence. No instructions as to the form of the verdict were requested by defendant. No exceptions to the instructions in that regard were taken. No objection was interposed to the reception of the verdict as returned. No motion was made that the jury be directed to retire and further deliberate concerning their verdict and specify therein the particular counts under which they found the defendant guilty. On this record, [150] unless procedure be deemed primarily a thicket’ in which to hide, the only fair reading of the verdict is that the jury found defendant guilty as charged in each count of the indictment, because it is' manifest that defendant and his counsel must so have understood the verdict when it was returned in the trial court.
The only “devices, prints, and impressions” shown to have been in the possession of defendant were molds in the similitude of coins of the United States and counterfeit coins molded- therein. The words “device, print, or impression, or any other thing whatsoever,” in section 3, must be read in connection with, and construed as being of the same general nature as, their companion words “business or professional card, notice, placard, token.” So read and construed, they do not, cover, in our judgment, counterfeit molds and counterfeit coins, the making of which, respectively, is punishable under section 1 of the act in question and section 5457 of the Revised Statutes. We do not believe that Congress intended that one and the same making should constitute both a hundred dollar misdemeanor and a ten-year felony. But the error in letting this count go to the jury was harmless, because the judgment is attributable wholly to the other counts.
Under section i the two offenses of “making” and of “having in possession” are of distinctly different natures. “Every person who' makes any mold [in the similitude of the genuine coins of the United States] without authority from -the Secretary of the Treasury of the United States or other proper officer, shall be punished.” “Every person who shall have in his possession any such mold with intent to fraudulently or unlawfully use the same, shall be punished.” To protect the integrity of the coins of our country, Congress has absolutely prohibited the unauthorized, the unofficial, making of molds. The purpose or intent with which unofficial molds are made is of no concern. Simply, they must not be made. But respecting possession the matter is inherently different. There are many circumstances under which persons might come into possession of counterfeiting molds, 'either without knowledge of .their character, or with such knowledge but without intent to .use them fraudulently or unlawfully, as, for instance, the officers who took and held possession of the molds in question. Mere possession is inherently colorless; but the making of counterfeiting implements is inherently wrong, or at least was a proper matter for Congress to make wrong, as Congress unmistakably has done.
With this understanding of the offense of making unauthorized molds, the conviction under the fifth count was inevitably right. The allegation in that count that defendant made the molds with the intent to use them fraudulently and unlawfully was surplusage. The pleader could not inject into the offense an element that Cong'ress said should not be an element. State v. Southern Rld. Co., 122 N. C. 1052, 30 S. E. 133, 41 L. R. A. 246; 22 Cyc. 448. The allegations that needed to-be proven were unequivocally established by defendant when he testified as a tyitness in his own behalf. So the queitions whether, at the conclusion of the government’s evidence, there was sufficient proof of the corpus delicti, whether purported oral and written admissions by defendant out of court were properly received in evidence, and [151] the like, all become immaterial. Whatever infirmities there were in the government’s case under the fifth count defendant voluntarily cured.
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BAKER, Circuit Judge
(after stating the facts as above). Charges of misdemeanor and of felony were joined in the indictment, the jury returned their verdict in the form of, “We, the jury, find the defendant guilty,” and the court assessed the punishment for felony. Upon this, defendant insists that the judgment must be reversed because, matching the verdict with the indictment, it does not appear but that the jury intended only to find him guilty of misdemeanor. But we are of the opinion that the verdict should be read in the light of the record which defendant helped to make. The trial, with defendant’s acquiescence, was an investigation of an alleged misdemeanor and of two classes of alleged felonies. The misdemeanor charge was distinguished from the felony charges in the court’s instructions to the jury. Taking the instructions as a whole, we find that the court told the jury to return a verdict of guilty only on such count or counts as they believed beyond a reasonable doubt were sustained by the evidence. No instructions as to the form of the verdict were requested by defendant. No exceptions to the instructions in that regard were taken. No objection was interposed to the reception of the verdict as returned. No motion was made that the jury be directed to retire and further deliberate concerning their verdict and specify therein the particular counts under which they found the defendant guilty. On this record, [150] unless procedure be deemed primarily a thicket’ in which to hide, the only fair reading of the verdict is that the jury found defendant guilty as charged in each count of the indictment, because it is' manifest that defendant and his counsel must so have understood the verdict when it was returned in the trial court.
The only “devices, prints, and impressions” shown to have been in the possession of defendant were molds in the similitude of coins of the United States and counterfeit coins molded- therein. The words “device, print, or impression, or any other thing whatsoever,” in section 3, must be read in connection with, and construed as being of the same general nature as, their companion words “business or professional card, notice, placard, token.” So read and construed, they do not, cover, in our judgment, counterfeit molds and counterfeit coins, the making of which, respectively, is punishable under section 1 of the act in question and section 5457 of the Revised Statutes. We do not believe that Congress intended that one and the same making should constitute both a hundred dollar misdemeanor and a ten-year felony. But the error in letting this count go to the jury was harmless, because the judgment is attributable wholly to the other counts.
Under section i the two offenses of “making” and of “having in possession” are of distinctly different natures. “Every person who' makes any mold [in the similitude of the genuine coins of the United States] without authority from -the Secretary of the Treasury of the United States or other proper officer, shall be punished.” “Every person who shall have in his possession any such mold with intent to fraudulently or unlawfully use the same, shall be punished.” To protect the integrity of the coins of our country, Congress has absolutely prohibited the unauthorized, the unofficial, making of molds. The purpose or intent with which unofficial molds are made is of no concern. Simply, they must not be made. But respecting possession the matter is inherently different. There are many circumstances under which persons might come into possession of counterfeiting molds, 'either without knowledge of .their character, or with such knowledge but without intent to .use them fraudulently or unlawfully, as, for instance, the officers who took and held possession of the molds in question. Mere possession is inherently colorless; but the making of counterfeiting implements is inherently wrong, or at least was a proper matter for Congress to make wrong, as Congress unmistakably has done.
With this understanding of the offense of making unauthorized molds, the conviction under the fifth count was inevitably right. The allegation in that count that defendant made the molds with the intent to use them fraudulently and unlawfully was surplusage. The pleader could not inject into the offense an element that Cong'ress said should not be an element. State v. Southern Rld. Co., 122 N. C. 1052, 30 S. E. 133, 41 L. R. A. 246; 22 Cyc. 448. The allegations that needed to-be proven were unequivocally established by defendant when he testified as a tyitness in his own behalf. So the queitions whether, at the conclusion of the government’s evidence, there was sufficient proof of the corpus delicti, whether purported oral and written admissions by defendant out of court were properly received in evidence, and [151] the like, all become immaterial. Whatever infirmities there were in the government’s case under the fifth count defendant voluntarily cured.
If we were to accept an assumption that underlies defendant’s argument respecting counts 2, 3, and 4, the conviction thereunder might not be sustainable. Proof that defendant’s possession of the molds was with the intent to use them fraudulently or unlawfully was indispensable. Defendant’s underlying assumption is that the pleaded intent could not be established except by proof that he intended to use the molds to make counterfeit coins with the intent that he should use the counterfeits, or permit them to be used, in defrauding some one. Defendant testified that he made the molds, and used them in making counterfeit coins, hut that he had no intent that the counterfeits should be used to defraud any one by passing them as genuine money — that his molds and coins were experiments to see if he could become a proficient caster of medals. Counter evidence was introduced which, the government claims, tended to prove that defendant permitted his minor son to take some of the spurious coins, and that tile son defrauded a shopkeeper by obtaining merchandise in exchange for three counterfeit dimes; and the dimes were admitted in evidence. If defendant’s assumption were well founded, questions would have to be determined concerning the sufficiency of the identification of the coins and of defendant’s connection with his son’s unlawful act. But we cannot accept the assumption. Section 5157, denouncing counterfeiting, makes three separate classes of acts the equivalents of each other as offenses, visitable with the same punishment. One is the making of false, forged, or counterfeited coins; another is the passing of them; and the third is the having of them in possession. Now, like in the case of section 1 of the act of February 10, 1891, mere possession (or mere passing) is inherently colorless. So Congress explicitly provided, repeating the clause in each instance, that possession and passing should each be innocent except “with intent to defraud any body politic or corporate, or any other person or persons whatsoever.” But with respect to the making of counterfeits, the carefully worded expression of intent, twice inserted elsewhere in the same section, was omitted. And no other expression is used from which intent as an element of the offense of making counterfeits can be inferred. The adverb “falsely” in the opening line qualifies only the verb “makes,” because flic verbs “forges” and “counterfeits” carry in themselves the idea of falsity. So the purpose or intent with which counterfeit coins are made is of no concern. Simply, they must not be made. U. S. v. Russell (C. C.) 22 Fed. 390; U. S. v. Otey (C. C.) 31 Fed. 68. The act of February 10, 1891, is the later act. It should be read in the light of the elder, in. aid of which it was passed. So when we find that Congress had absolutely forbidden the making of counterfeit coins, and in aid of that prohibition has absolutely forbidden the makitig of unauthorized molds, the intent to use such molds fraudulently or unlawfully should be assigned to the intent to use them for the making of counterfeit coins. The intent to defraud (in the sense of cheating in trade) by section 5157 attaches solely to the possession and the passing [152] ■of counterfeits, and not at all to the making. Consequently, the charge, in counts 2, 3, and 4, that defendant had the molds in possession with intent to use them unlawfully (or fraudulently in the sense of committing a fraud upon the government’s exclusive right to coin) would be supported by proof that defendant had in his possession unauthorized molds with intent to use them 'in casting counterfeit coins. And that such were the facts, defendant’s own testimony indisputably was sufficient to prove. Therefore the government’s undertaking to prove that defendant had a forbidden intent in connection with the use of the coins, as well as a forbidden intent in connection with the use of the molds, was an unnecessary burden, harmful to the prosecution rather than to the defense.
Practically no exceptions were taken to the rulings that are now complained of. Nevertheless we have examined the entire record, and have found no substantial reason for disturbing the action of the trial court.
The judgment is affirmed.