United States v. Marcus

53 F. 784, 1893 U.S. App. LEXIS 2425

• Court: U.S. Circuit Court for the District of Southern New York
• Decided: January 20, 1893
• Status: Published

Opinion

BENEDICT, District Judge.

This case comes before the court upou a motion in arrest of judgment and for a new trial. The motions were heard together. The charge against the defendant was of passing counterfeit money. It appeared in evidence that the accused, on a certain day. took to the Butchers’ & Drovers’ Bank certain bills for deposit to Ms credit; that the receiving teller ascertained that; one of the hills was a counterfeit, and thereupon stamped on the face of the bill, in plain and large letters, the word “Counterfeit,” and returned the hill to the defendant. Afterwards the defendant pasted a piece of white paper over the word “Counterfeit,” which liad been stamped upon the bill, so as to conceal the word stamped on the bill; and then, on an application made by one Raphael Abel for some money to pay a working girl, the defendant paid him, among other bills, the bill in question. The bill was afterwards given by Abel to the girl, and upon her tendering; the bill to a third party it was rejected as counterfeit, aud thereupon returned to Abel. The defense was that the defendant passed the bill to Abel by accident, not knowing at the time that the bill on which he had pasted the paper over the word “Counterfeit” was among the hills he gave to Abel. The jury found the defendant guilty. He now moves in arresI; of judgment, and for a new trial, upon several grounds.

The first ground is that the indictment charges no offense, because it charges the defendant with uttering a treasury note of the denomination of live dollars, when, as it is claimed, no live-dollar treasury notes were authorized by law. This objection seems to he founded upon a misapprehension of the statute. By the act of August 5, 1861, (12 St. at Large, p. 313, § 3,) five-dollar treasury notes were authorized.

Next it is contended that the indictment is repugnant because it designates the hill uttered as a treasury note, when the note set forth in the indictment is a United States note. This objection cannot be sustained. The decisions are that, where a bill is set out by its tenor in an indictment, any designation of it in the indictment is immaterial. It was so held by this court in the case of U. S. v. Bennett, 17 Blatchf. 357. The prior case of U. S. v. Mason, 12 Blatchf. 497, is not contrary to this. All that was said in the Mason Case is that a wrong designation of the bill was a defect. It was not said to be a fatal defect, and the count was not held bad for that reason, but for other reasons stated. The law applicable here is stated in Bennett’s Case, supra.

Next it is contended that there is a fatal variance between the indictment and the proof because all the matter printed on the back of the note put in evidence is not set forth in the indictment. The matter set forth in the indictment was proved as laid. The indictment does not charge that the matter set forth constituted all the matter on the back of the bill, nor was it necessary to set forth all the matter on the back' of the bill. What is omitted is a mere notice required by law to be placed upon notes of this character, but.which is no part of the contract. The allegation of the indictment that the bill was in the words and figures following does not mean that all the words and figures printed on the back of the bill, and forming no part of the contract set forth on the face of the bill, are stated. Where an instrument is set forth in the indictment by its purport, the allegation refers to what appears on the face of the instrument. U. S. v. Hinman, 1 Baldw. 292.

The remaining question is raised by the objection taken to the proving that the accused was the person who passed the bill to Abel by the confession of the accused that he so passed it. In support of this objection the rule that the corpus delicti cannot be proved by the admission of the accused is rélied on. That rule was not infringed at the trial of this case. When the charge is uttering counterfeit money with intent to defraud, the corpus delicti is sufficiently proved when it is shown that the counterfeit bill described had been uttered as true. That being shown, the agency of the accused in passing the bill may be shown by his confession. Abb. Tr. Brief, p. 305. In this case the uttering of the bill as true to Abel was clearly proved before evidence of the confession of the accused was admitted.

I am also asked to set aside the verdict as not supported by the weight of evidence. In my opinion the verdict was in accordance with the weight of evidence.

Both motions must therefore be dismissed.