Ryland, J.,
delivered the opinion of the court.
The defendant, Mix, was indicted with one Dick Smith, alias John Williams, for passing counterfeit bank notes. The defendant severed on the trial.
There was pr5of tending to show very plainly, that the two indicted, Mix and Williams, were seen in company, at different places; and that Williams would jiurchase some article of small price, and give a bank note in payy’Sfel-ifisew® cash and other notes in change; that these bank notes, so paid by 'WiMiains, were counterfeit. This was done at “Ja[157]*157coby’s,”' at “Dr. Bragg’s store” and at the “Commercial Exchange,” all in the city of St. Louis. That the defendant at one place, In order to make the change, took a plug of tobacco; that is, the person paying the change for the counterfeit note, which he had received in payment, paid over to Mix a plug of tobacco. There was evidence, tending to show, that Mix and Williams were together, so that concert of action might very fairly be presumed to exist between them.
The jury found the defendant guilty. He moved for a new trial, which being overruled, he brings the case here by appeal. The errors relied upon for a reversal, are, that the criminal court erred in giving Instructions for the State, and in refusing instructions for the defendant; that it erred in allowing the jury to separate before finding their verdict; that it erred in admitting testimony to the jury, and, also, in excluding testimony, and that it erred in refusing to grant a new trial.
We shall not touch the point of the competency of the co-defendant to testify in this case, for the defendant on trial; this point is before us in the ease of the State vs. Roberts, and will there be decided.
The point in relation to the separation of the jury, under the facts of this case, as they appear by the record, must be ruled against the defendant. Upon the trial, the court asked, “what shall be done with the jury?” and the counsel of both parties agreed that they might separate, under a charge from the court. This was at the adjournment at noon on the first day, and such separation continued afterwards, at each adjournment of the court, without any exception or objection, for several adjournments, until the attention of the court was called to it, after which, the jurors were kept together. The defendant’s consent might have well been presumed. If he can plead guilty, I should think he might consent to the separation of the jury. Though, in some cases, it might be prudent for the eourt not to permit the consent to be given, in cases where minors or slaves are indicted, yet, the court might well refuse to act on the consent.
The following are the instructions given for the State;
1. If the jury believe from the evidence that the defendant, William Mix, was in company with Dick Smith, alias Williams, at the time he (Smith) passed the counterfeit money mentioned in the indictment, and that he knew the same to be counterfeit money mentioned in the indictment. and that he knew the same to be counterfeit, and if the jury believe that he was sufficiently near to render him assistance, or did aid or abet, or direct said Smith, alias Williams, to pass the same, and that he did so aid, direct and abet, knowing said bills to be counterfeit, the [158]*158intent to defraud Frederick Jacoby or the Mechanics & Merchants Bank of Wheeling may.be inferred.
2. It is not necessary that the jury should believe that the defendant was actually present when the felony was committed, but if the jury believe that the defendant was in company witli Williams and that the said Williams did pass the counterfeit bill charged in the indictment, and that he knew the said bill was a counterfeit, and that the defendant, though absent at the time, had counselled, procured or abetted the said Williams in the passage of the same; then the said defendant is guilty of being accessory before the fact, and the jury will find him guilty of forgery in the second degree. The court is asked to exclude the part of the evidence of M’Affee, in which he says, defendant told him, that he, defendant, had been in the State Prison of Kentucky.
3. If the jury believe from the evidence in the cause, that the defendant did pass as true, or that he did in any way aid Williams in passing or in an attempt to pass, the bank note charged in the indictment, and that the defendant did so pass or aid or countenance the passing, knowing it to be counterfeit, and for the purpose of defrauding as charged, they will find him guilty of forgery in the second degree.
4. If the jury find the defendant guilty, as charged in the indictment, they' will assess the punishment to imprisonment in the penitentiary for a term not less than seven nor more than ten years.
If the iury find the defendant guilty, but cannot agree as to the measurement oi punishment they can return with such a verdict, without assessing the punishment.
In lieu of the instruction asked for by the defendant, relating to M’Affee’s testimony, the court gave an instruction, in substance, as follows, to-wit:
6. If the jury believe from the evidence, that M’Affee, or any other witness, has wilfully and knowingly testified falsely to any material fact in the cause, they are at liberty to reject the whole or any part of the testimony of such witness, which is inconsistent with other truthful evidence in the cause.
The following instructions were asked by the defendant and refused by the court:
7. If the jury believe from the evidence, that the witness,-M’Affee, wilfully , testified falsely to any material fact in the case, they are authorized to discredit and reject the whole of his testimony.
8. The court is asked to instruct the jury that to aid, assist or abet another in the uttering or passing of a counterfeit bank note, is to do something which either gives Credit to the person or the paper offered, [159]*159that a man present when the paper is offered or passed, without saying a word or doing an act is not such aiding and abetting as will make a man subject to conviction.
9. In order to convict the defendant, the jury must be satisfied beyond a reasonable doubt, that the defendant passed, aided and countenanced and published as true, with intent to defraud the bank mentioned in the indictment, or the persons named; knowing that the same was counterfeit, one or more of the banknotes set out in the indictment.
10. The court is asked to instruct the jury, that to make the defendant an accessory before the fact, they must be satisfied that he did something which either gave aid to the person who passed it, or induced those who received it to receive it by some word or act; that his mere presence when the paperis offeredor p assed without saying or doing anything, is not such a participation as constitutes an accessory before the fact.
11. In order to convict the defendant, the jury must be satisfied/rom ike evidence that the bank set out in the indictment was a bank incorporated under the laws of the State of Virginia, and that the statute which dispenses with the proof that the same was incorporated by reputation.
12. If the jury believe that there is no evidence that the Bank of Virginia was an incorporated bank they must acauit the defendant.
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Ryland, J.,
delivered the opinion of the court.
The defendant, Mix, was indicted with one Dick Smith, alias John Williams, for passing counterfeit bank notes. The defendant severed on the trial.
There was pr5of tending to show very plainly, that the two indicted, Mix and Williams, were seen in company, at different places; and that Williams would jiurchase some article of small price, and give a bank note in payy’Sfel-ifisew® cash and other notes in change; that these bank notes, so paid by 'WiMiains, were counterfeit. This was done at “Ja[157]*157coby’s,”' at “Dr. Bragg’s store” and at the “Commercial Exchange,” all in the city of St. Louis. That the defendant at one place, In order to make the change, took a plug of tobacco; that is, the person paying the change for the counterfeit note, which he had received in payment, paid over to Mix a plug of tobacco. There was evidence, tending to show, that Mix and Williams were together, so that concert of action might very fairly be presumed to exist between them.
The jury found the defendant guilty. He moved for a new trial, which being overruled, he brings the case here by appeal. The errors relied upon for a reversal, are, that the criminal court erred in giving Instructions for the State, and in refusing instructions for the defendant; that it erred in allowing the jury to separate before finding their verdict; that it erred in admitting testimony to the jury, and, also, in excluding testimony, and that it erred in refusing to grant a new trial.
We shall not touch the point of the competency of the co-defendant to testify in this case, for the defendant on trial; this point is before us in the ease of the State vs. Roberts, and will there be decided.
The point in relation to the separation of the jury, under the facts of this case, as they appear by the record, must be ruled against the defendant. Upon the trial, the court asked, “what shall be done with the jury?” and the counsel of both parties agreed that they might separate, under a charge from the court. This was at the adjournment at noon on the first day, and such separation continued afterwards, at each adjournment of the court, without any exception or objection, for several adjournments, until the attention of the court was called to it, after which, the jurors were kept together. The defendant’s consent might have well been presumed. If he can plead guilty, I should think he might consent to the separation of the jury. Though, in some cases, it might be prudent for the eourt not to permit the consent to be given, in cases where minors or slaves are indicted, yet, the court might well refuse to act on the consent.
The following are the instructions given for the State;
1. If the jury believe from the evidence that the defendant, William Mix, was in company with Dick Smith, alias Williams, at the time he (Smith) passed the counterfeit money mentioned in the indictment, and that he knew the same to be counterfeit money mentioned in the indictment. and that he knew the same to be counterfeit, and if the jury believe that he was sufficiently near to render him assistance, or did aid or abet, or direct said Smith, alias Williams, to pass the same, and that he did so aid, direct and abet, knowing said bills to be counterfeit, the [158]*158intent to defraud Frederick Jacoby or the Mechanics & Merchants Bank of Wheeling may.be inferred.
2. It is not necessary that the jury should believe that the defendant was actually present when the felony was committed, but if the jury believe that the defendant was in company witli Williams and that the said Williams did pass the counterfeit bill charged in the indictment, and that he knew the said bill was a counterfeit, and that the defendant, though absent at the time, had counselled, procured or abetted the said Williams in the passage of the same; then the said defendant is guilty of being accessory before the fact, and the jury will find him guilty of forgery in the second degree. The court is asked to exclude the part of the evidence of M’Affee, in which he says, defendant told him, that he, defendant, had been in the State Prison of Kentucky.
3. If the jury believe from the evidence in the cause, that the defendant did pass as true, or that he did in any way aid Williams in passing or in an attempt to pass, the bank note charged in the indictment, and that the defendant did so pass or aid or countenance the passing, knowing it to be counterfeit, and for the purpose of defrauding as charged, they will find him guilty of forgery in the second degree.
4. If the jury find the defendant guilty, as charged in the indictment, they' will assess the punishment to imprisonment in the penitentiary for a term not less than seven nor more than ten years.
If the iury find the defendant guilty, but cannot agree as to the measurement oi punishment they can return with such a verdict, without assessing the punishment.
In lieu of the instruction asked for by the defendant, relating to M’Affee’s testimony, the court gave an instruction, in substance, as follows, to-wit:
6. If the jury believe from the evidence, that M’Affee, or any other witness, has wilfully and knowingly testified falsely to any material fact in the cause, they are at liberty to reject the whole or any part of the testimony of such witness, which is inconsistent with other truthful evidence in the cause.
The following instructions were asked by the defendant and refused by the court:
7. If the jury believe from the evidence, that the witness,-M’Affee, wilfully , testified falsely to any material fact in the case, they are authorized to discredit and reject the whole of his testimony.
8. The court is asked to instruct the jury that to aid, assist or abet another in the uttering or passing of a counterfeit bank note, is to do something which either gives Credit to the person or the paper offered, [159]*159that a man present when the paper is offered or passed, without saying a word or doing an act is not such aiding and abetting as will make a man subject to conviction.
9. In order to convict the defendant, the jury must be satisfied beyond a reasonable doubt, that the defendant passed, aided and countenanced and published as true, with intent to defraud the bank mentioned in the indictment, or the persons named; knowing that the same was counterfeit, one or more of the banknotes set out in the indictment.
10. The court is asked to instruct the jury, that to make the defendant an accessory before the fact, they must be satisfied that he did something which either gave aid to the person who passed it, or induced those who received it to receive it by some word or act; that his mere presence when the paperis offeredor p assed without saying or doing anything, is not such a participation as constitutes an accessory before the fact.
11. In order to convict the defendant, the jury must be satisfied/rom ike evidence that the bank set out in the indictment was a bank incorporated under the laws of the State of Virginia, and that the statute which dispenses with the proof that the same was incorporated by reputation.
12. If the jury believe that there is no evidence that the Bank of Virginia was an incorporated bank they must acauit the defendant.
Upon looking ove»1 these instructions, the first three, marked as given for the State, seem, at first inspection, to be somewhat loosely and incautiously written. We had much rather have seen the principles declared by them, plainly given to the jury. Yet, we will not say that these instructions are erroneous, or that they must have operated to the prejudicé of the prisoner.
A few plain propositions, embracing the law upon the facts of the case, are greatly to be preferred, in every case, to a long string of instructions, running into each other, and involved in intricacies, requiring as much elucidation as the facts of the case themselves.
The 4th and 5th instructions, may pass without objection.
The 6th instruction is wrong. It was given instead of the first one asked by the defendant, and it does not fully embrace the point included in the defendant’s first. We think the defendant’s instruction should have been given, or some one embracing the same principles.
We do not find any point in the action of the court in refusing the other instructions, asked by the ^defendant. They were calculated to mislead the jury. An accomplice might stand by, watching and guarding his fellow, while engaged in the act of passing the counterfeit money, [160]*160without even doing an act, or saying a word, at the time. Nay, he might be keeping the watchman’s post, at a distance from the scene of operations, and, at the same time, be guilty. This is a crime, after the preparations are made and the funds ready to be used, which may be perpetrated by the assistance of those who, seemingly, at the time, act as strangers to each other. The aid, the abetting, may be given in the dark closet or cellar, or at the different angles of the cross streets. The cunning, crafty devices which they use to impose upon the unsuspecting, are, in the language of one of the witnesses, in alluding to a new issue of counterfeits, “something hard to beat.”
The instruction in regard to the incorporation of the bank of Virginia, were properly refused. The testimony of the witness, that the defendant told him he had been in the state prison of Kentucky, under the circumstances on which it was brought out, on the trial below, was improper. It should not have been allowed. The court, afterwards, did all it could to eure the impropriety, by withdrawing it from the jury, but it was wrong to allow it at first; the injury it caused to the defendant, may have been too deeply fixed on the juror’s minds to be easily obliterated.
It was competent to the State to prove, after having proved that the defendant had passed a bank note, which was counterfeit, as charged in the indictment, in order to show guilty knowledge in the defendant, that he had passed other counterfeit bank notes, of a similar kind to other persons, at different times, before and subsequent to the indictment. See the authorities to the point cited in the circuit attorney’s brief.
We think the court erred in giving the 6th instruction, in lieu of the defendant’s first.
If the law be fairly laid down, in the instructions given to the jury, embracing the whole case, we will not reverse for not giving others, which in themselves may be right.
The judgment in this case is reversed,< and the cause remanded; lb® other judges concurring,