Ryland, Judge,
delivered the opinion of the court.
In this case, the indictment charges that Daniel D. Page and Henry D. Bacon, being money brokers and exchange dealers, doing business under the name, style and firm of Page & Bacon, in St. Louis county, on, &c., at, &c., with force and arms, being unauthorized by law, and whilst they were money brokers and exchange dealers aforesaid, unlawfully did create and put in circulation, as a circulating medium, divers notes, bills, checks and tickets, purporting that money will be paid to the receiver, holder and bearer thereof, said notes, bills, checks and tickets to be then and there used as currency and as a medium of trade in lieu of money, and that said notes, bills, checks and tickets'will be received in payment of debts, that is [215]*215to say, fifty notes each of the denomination of one dollar; fifty notes each of the denomination of three dollars ; .fifty notes each of the denomination of five dollars ; fifty hills each of the denomination of one dollar, &c. ; fifty checks each of the denomination of one dollar, &c. ; fifty tickets each of the denomination of one dollar, &c. — (in like denomination as the notes,) against the peace, &c., of the state.
The second count charges, that said defendants unlawfully did issue, sign, countersign and endorse divers notes, hills, checks and tickets, then and there created and put in circulation as a circulating medium, and purporting that money will be paid to the receiver, bearer and holder thereof, and then and there to be used as currency, and as a medium of trade in lieu of money, to-wit: forty notes each of the denomination of one dollar, &c. ; forty bills each of the denomination of one dollar, &c. ; forty checks each of the denomination of one dollar, &c.; forty tickets each of the denomination of one dollar, &c.; describing them as of various denominations, from one to five dollars, against the peace and dignity of the state.
At the March term, 1853, of the St. Louis Criminal Court, the defendants were tried and convicted, and fined each one thousand dollars. Motions in arrest of judgment and for new trial were made, overruled and excepted to, and the defendants bring the case here by appeal.
The defendants complain, that the court below admitted improper evidence to be given on the part of the State in support of this indictment.
The certificates or instruments offered in evidence in support of the prosecution, and charged to have been created and put in circulation, and those charged to have been issued and signed by the defendants and put in circulation, are as follows :
No. 939. Page & Bacon A Five.
5 Banking House, St. Louis, Mo.
(Vignette.) (Vignette.)
St. Louis, January 1, 1852.
This certifies, that Thos. Brown has depositfed in 5 [216]*216this office, five dollars, payable to bearer, at the (Yignette.) banking house of Flagg & Savage, Quincy, Ills.
Page & Bacon.
3 No. 3631. Page & Bacon. A
Banking House. (Yignette.) Three.
St. Louis, Mo.
St. Louis, January 1, 1852. (Vignette.) This certifies Thos. Brown has deposited in this office, three dollars, payable to bearer, at the banking house of Flagg & Savage.
Three. Page & Bacon. (Yignette.)
1 No. 5416. Page & Bacon. A
(Yignette.) Banking House. (Yignette.) One.
January 1, 1852.
This certifies, that Thos. Brown has deposited in this office, (Yignette.) one dollar, payable to bearer, at the banking house of Flagg & Savage.
Quincy, Ills.
One. Page & Bacon. (Yignette.)
The defendants objected to the offering and giving these certificates in evidence to the jury ; the court permitted them to be read in evidence, and the defendants excepted.
1. In the opinion of this court, the Criminal Court erred in permitting these certificates to be read and given in evidence before the jury, under any count of the indictment.
The indictment charges that the defendants did create and put in circulation, and did issue, sign, countersign and endorse divers notes, bills, checks and tickets, “ purporting” i‘ that money will be paid to the receiver, bearer and holder thereof.” The word “ purporting,” in the indictment and in the statute, is a word of technical meaning. Buller, J., in delivering the opinion of the judges in Beading’s case, 2 Leach, 590, said : ic It is clear that, whore an instrument is to be set [217]*217forth, the description that it purports a particular fact, necessarily me.ans that what is stated as the purport of the instrument, appears on the face of the instrument itself.” Again, in Gilchrist’s case, 2 Leach, 657, Buller, J., in delivering the opinion of the judges, said-. “ Old cases have given rise to much learning and argument on the words “ purport” and “ tenor,” and the books are full of distinctions as to the meaning of these words, and the necessity of using the one or the other of them in indictments, where written instruments are to be stated; but among the many cases upon this subject, I can find no judicial determination that the purport and the tenor should both be stated in any case whatever. Purport means the substance of an instrument, as it appears on the face of it to every eye that reads it; tenor means an exact copy of it.” Russell says, but with respect to the word “ purport,” it should be well observed, that it imports what appears on the face of the instrument, as a want of attention to this meaning of the word has been fatal to many indictments. 2 Russell on Crimes, 345, side p. 364.
Archbold, in his “Criminal Pleadings,” p. 58, says : “If an indictment describe a written instrument as purporting to be so and so, the instrument, when produced in evidence, must appear upon the face of it, to be what it is described as purporting to be; otherwise the defendant will be acquitted for variance. In the case of the King v. Jones, Doug. Rep. 289, Lord Mansfield said, “the representations of the prisoner to Royner, after the note was made, could not alter the purport, which is what appears on the face of the instrument itself.”
There is no necessity for searching the books any further upon the subject, as this court recognized the same principle, and referred to some of the books above quoted, in the case of Downing v. The State, 4 Mo. 572, opinion by Judge Tompkins and concurred in by Judge McGirk.
In the case of Downing v. The State, the indictment charged, that Downing put in circulation, &c., a certain note, purporting that five dollars will be paid to the holder thereof, [218]*218the note offered in evidence purported that five dollars would be paid to the bearer thereof. The court said, this is clearly a wrong description of the note, and for this reason the judgment ought to have been arrested. The court, in the opinion delivered, remarked, that it is certain that the legal effect of the note, as set out in the indictment, and, as it is proved, is the same, but as it was attempted to describe the note,^ not according to its legal effect, but to describe it as it existed, it should have been so done ; that such is the meaning of the word
Free access — add to your briefcase to read the full text and ask questions with AI
Ryland, Judge,
delivered the opinion of the court.
In this case, the indictment charges that Daniel D. Page and Henry D. Bacon, being money brokers and exchange dealers, doing business under the name, style and firm of Page & Bacon, in St. Louis county, on, &c., at, &c., with force and arms, being unauthorized by law, and whilst they were money brokers and exchange dealers aforesaid, unlawfully did create and put in circulation, as a circulating medium, divers notes, bills, checks and tickets, purporting that money will be paid to the receiver, holder and bearer thereof, said notes, bills, checks and tickets to be then and there used as currency and as a medium of trade in lieu of money, and that said notes, bills, checks and tickets'will be received in payment of debts, that is [215]*215to say, fifty notes each of the denomination of one dollar; fifty notes each of the denomination of three dollars ; .fifty notes each of the denomination of five dollars ; fifty hills each of the denomination of one dollar, &c. ; fifty checks each of the denomination of one dollar, &c. ; fifty tickets each of the denomination of one dollar, &c. — (in like denomination as the notes,) against the peace, &c., of the state.
The second count charges, that said defendants unlawfully did issue, sign, countersign and endorse divers notes, hills, checks and tickets, then and there created and put in circulation as a circulating medium, and purporting that money will be paid to the receiver, bearer and holder thereof, and then and there to be used as currency, and as a medium of trade in lieu of money, to-wit: forty notes each of the denomination of one dollar, &c. ; forty bills each of the denomination of one dollar, &c. ; forty checks each of the denomination of one dollar, &c.; forty tickets each of the denomination of one dollar, &c.; describing them as of various denominations, from one to five dollars, against the peace and dignity of the state.
At the March term, 1853, of the St. Louis Criminal Court, the defendants were tried and convicted, and fined each one thousand dollars. Motions in arrest of judgment and for new trial were made, overruled and excepted to, and the defendants bring the case here by appeal.
The defendants complain, that the court below admitted improper evidence to be given on the part of the State in support of this indictment.
The certificates or instruments offered in evidence in support of the prosecution, and charged to have been created and put in circulation, and those charged to have been issued and signed by the defendants and put in circulation, are as follows :
No. 939. Page & Bacon A Five.
5 Banking House, St. Louis, Mo.
(Vignette.) (Vignette.)
St. Louis, January 1, 1852.
This certifies, that Thos. Brown has depositfed in 5 [216]*216this office, five dollars, payable to bearer, at the (Yignette.) banking house of Flagg & Savage, Quincy, Ills.
Page & Bacon.
3 No. 3631. Page & Bacon. A
Banking House. (Yignette.) Three.
St. Louis, Mo.
St. Louis, January 1, 1852. (Vignette.) This certifies Thos. Brown has deposited in this office, three dollars, payable to bearer, at the banking house of Flagg & Savage.
Three. Page & Bacon. (Yignette.)
1 No. 5416. Page & Bacon. A
(Yignette.) Banking House. (Yignette.) One.
January 1, 1852.
This certifies, that Thos. Brown has deposited in this office, (Yignette.) one dollar, payable to bearer, at the banking house of Flagg & Savage.
Quincy, Ills.
One. Page & Bacon. (Yignette.)
The defendants objected to the offering and giving these certificates in evidence to the jury ; the court permitted them to be read in evidence, and the defendants excepted.
1. In the opinion of this court, the Criminal Court erred in permitting these certificates to be read and given in evidence before the jury, under any count of the indictment.
The indictment charges that the defendants did create and put in circulation, and did issue, sign, countersign and endorse divers notes, bills, checks and tickets, “ purporting” i‘ that money will be paid to the receiver, bearer and holder thereof.” The word “ purporting,” in the indictment and in the statute, is a word of technical meaning. Buller, J., in delivering the opinion of the judges in Beading’s case, 2 Leach, 590, said : ic It is clear that, whore an instrument is to be set [217]*217forth, the description that it purports a particular fact, necessarily me.ans that what is stated as the purport of the instrument, appears on the face of the instrument itself.” Again, in Gilchrist’s case, 2 Leach, 657, Buller, J., in delivering the opinion of the judges, said-. “ Old cases have given rise to much learning and argument on the words “ purport” and “ tenor,” and the books are full of distinctions as to the meaning of these words, and the necessity of using the one or the other of them in indictments, where written instruments are to be stated; but among the many cases upon this subject, I can find no judicial determination that the purport and the tenor should both be stated in any case whatever. Purport means the substance of an instrument, as it appears on the face of it to every eye that reads it; tenor means an exact copy of it.” Russell says, but with respect to the word “ purport,” it should be well observed, that it imports what appears on the face of the instrument, as a want of attention to this meaning of the word has been fatal to many indictments. 2 Russell on Crimes, 345, side p. 364.
Archbold, in his “Criminal Pleadings,” p. 58, says : “If an indictment describe a written instrument as purporting to be so and so, the instrument, when produced in evidence, must appear upon the face of it, to be what it is described as purporting to be; otherwise the defendant will be acquitted for variance. In the case of the King v. Jones, Doug. Rep. 289, Lord Mansfield said, “the representations of the prisoner to Royner, after the note was made, could not alter the purport, which is what appears on the face of the instrument itself.”
There is no necessity for searching the books any further upon the subject, as this court recognized the same principle, and referred to some of the books above quoted, in the case of Downing v. The State, 4 Mo. 572, opinion by Judge Tompkins and concurred in by Judge McGirk.
In the case of Downing v. The State, the indictment charged, that Downing put in circulation, &c., a certain note, purporting that five dollars will be paid to the holder thereof, [218]*218the note offered in evidence purported that five dollars would be paid to the bearer thereof. The court said, this is clearly a wrong description of the note, and for this reason the judgment ought to have been arrested. The court, in the opinion delivered, remarked, that it is certain that the legal effect of the note, as set out in the indictment, and, as it is proved, is the same, but as it was attempted to describe the note,^ not according to its legal effect, but to describe it as it existed, it should have been so done ; that such is the meaning of the word purport, is sufficiently established by authority. This decision was made in 1887, and the use of the word purport and its technical meaning, was thus made known by the highest judicial authority of this state. The words of the statute of 1835, under which Downing was indicted, are as follows : “ No person unauthorized by law, shall intentionally create or put in circulation, as a circulating medium, any note, bill, check or ticket, purporting that any money will be paid to the receiver or holder thereof.” R. 0., 1835. In the Revised Code of 1845, the words, “ or that it will be received in payment of debts, or to be used as a currency or medium of trade in lieu of money,” are added.
We cannot then, suppose, that the legislature, in their Digest of 1845, used the word “purport” or “purporting” in a different sense from the judicial interpretation given to it in the statute of 1835.
We adhere to the decision of the court in Downing’s case, and, consequently, the judgment of the Criminal Court must be reversed.
Judge Gamble concurs in this opinion; Judge Scott dissents.