United States v. Moulton

27 F. Cas. 11, 5 Mason C.C. 537

• Court: U.S. Circuit Court for the District of Massachusetts
• Decided: October 15, 1830
• Status: Published

Opinion

STORY, Circuit Justice.

The 16th section of the crimes act of 1790, c. 36 [1 Story’s Laws, 83; 1 Stat. 112], provides, “that if any person &c., upon the high seas, shall take, and carry away, with an intent to steal or purloin, the personal goods of another, the person &e. shall, on conviction, be fined not exceeding the fourfold value of the property so stolen,” &e. The question is, whether foreign coin, and domestic coin, and bank bills, or any of them, are “personal goods” within the intent of the statute. In the strictest sense of the common law, “personal goods” are moveables belonging to, and the property of, some person, which have an intrinsic value. And even in this, the strictest sense, there cannot be any legal doubt, that the foreign and domestic coins, enumerated in the indictment, are “personal goods,” for they have an intrinsic value. In a more large and liberal sense, the term “goods” may embrace moveables not having any intrinsic value, such as choses in action and monied securities, notes, bonds, and other debts, and evidences of debts. Thus, a bequest by a •party of all his goods and chattels, without any other restrictive or explanatory words, would carry choses in action, bonds, &c., as well as money and other valuable moveables. And this upon the plain import of the words, as expressive of the intention of the testator. Anon. 1 P. Wms. 267. But in construing penal statutes, courts of law have often, in favour of the citizen, interpreted the word “goods” in its strictest sense; and, indeed, in capital felonies, have sometimes, in favour of life, adopted a far more limited meaning, savouring too often of unseemly nicety, if not of extravagant refinement.

The words of the present enactment approach very near to the definition of larceny at the common law. The usual definition of that offence is, the felonious and fraudulent taking and carrying away by any person of the mere personal goods of another (4 Bl. Comm. 229; 3 Inst. 107; 2 East. P. C. 553; 2 Russ. Crimes, 1032); and according to Brac-ton (liber 3, c. 32), “furtum est secundum leges contractatio rei alíense fraudulenta, cum animo furandi, invito illo domino cujus res illa fuerit,” answering very nearly to the description given by a late learned judge, that it is the felonious taking of the property of another, without his consent and against his will, with intent to convert it to the use of the taker. Hammon’s Case, 2 Leach, 1089 ; 2 Russ. Crimes, 1032, 1033; 2 East, P. C. 553; Curwood.’s Hawk. bk. 1, c. 19, and note, Id. In the above definition, “personal goods” has always been construed to mean such moveables only, as have an intrinsic value; and therefore as not comprehending mere choses in action. The common law did not deem the latter the subject of larceny, because they were not of any intrinsic value, and did not import any property in possession of the person, from whom they are taken. 4 Bl. Comm. 234 ; 2 Russ. Crimes, 1112; 2 East, P. C. 597; Anon., Dyer 5; Rex v. Morris, 2 Leach, 525; 3 Inst. 107, 109; Co. Litt. 118b; Calye’s Case, 8 Coke, 33a. It was upon this ground that this court thought itself constrained to hold, in the case of U. S. v. Davis [Case No. 14,930], that mere choses in action (such as a private promissory note for money,) were not personal goods within the purview of the act of 1790. It was presumed, that as the legislature made use of language importing, almost in the very words of the common law, a definition of larceny, such “personal goods” only, as might be deemed property in possession at the common law, were within the contemplation of the act But to carry the exception farther, and exclude money and coin of foreign or domestic coinage, which are in the strictest sense “personal goods,” having an intrinsic value, would, in our judgment, be to indulge a latitude of construction not properly belonging to judicial tribunals. The natural sense of the terms of the act ought to be adopted, unless the context affords clear proof of some more restrictive application of them. Very little light can be gathered from the decisions of the English courts, upon the construction of their own statutes, to assist us in this part of the inquiry. In the first place, as has been already intimated, courts of law, in cases of capital felonies, have been very astute, perhaps unjustifiably so, to escape from the literal meaning of the words, and to create conjectural exceptions. Such a proceeding, if it may be properly allowed in cases affecting life, is wholly inapplicable to cases of mere misdemeanors, and to other cases not capital. There is much masculine sense in the distinction taken on this subject by the court, in the case of the Com. v. Fisher, 17 Mass. 46. In the next place, there is not a single decision in the English books to our knowledge, which, in point of authority, ought to govern in the construction of the present act; for, in no English statute are the objects or the language substantially the same with ours. There are other accompanying •words, or other clauses in the context, explanatory of the legislative intent, which might well authorize, if they did not absolutely require, the court to adopt the narrower construction, in favorem vita:. It will be sufficient to cite a few of the more prominent cases in order to establish this position. In Rex v. Leigh, 1 Leach, 52, it was held by the court, that stealing money was not a capital larceny within the statute of 24 Geo. II. c. 45. The words of that statute are. “all and every person &e., who shall feloniously steal any goods, wares, or merchandises, of the value of 40 shillings, in any ship, barge, &c. upon any navigable river, or in any port, &c. or upon any wharf or quay, adjacent to such river or port.” The court thought, that the construction ought to be confined to such goods and merchandises as are usually lodged in ships, or on wharfs and quays. Reliance was also placed upon the accompanying words, “wares and merchandises,” (noscitur a sociis,) and upon the clause as to wharfs and quays; and very properly, for it was difficult to presume, that the legislature had a different intent, as to goods in ships, and on wharfs; and money is not usually lodged on wharfs. Fost. Crown Law, 79; 2 East, P. C. 647.

In the act of 1790, there are no such accompanying words; “personal goods” stand alone in the text, without any qualifying clause. In Rex v. Guy, 1 Leach, 241, which was an indictment for receiving two guineas, which were stolen, it was held, that under the statutes of 3 Woodb. & M. c. 9, § 4. and 3 Anne, c. 31, § 5, there cannot be an accessory after the fact for receiving money. The statute of W. & M., c. 9, provides, that “if any person &c. shall buy or receive any goods or chattels, that shall be feloniously taken or stolen from any other person, knowing the same to be stolen, he &c. shall be taken and deemed an accessory &c. to such felony, after the fact.” The statute of 5 Anne, c. 31, provides, that “if any person &c. shall receive or buy any goods or chattels, that shall be feloniously taken or stolen &c.,” in the same general terms, as that of W. & M. 2 East, P. C. 743, 744. The judges, in the construction of these statutes, seem uniformly to have held, that the words “goods and chattels” meaD such goods and chattels, whereof larceny could be committed at the common law, upon the plain ground, that the legislature did not intend to create any accessorial offence, except in cases where there was a principal offence already committed. It is certain, that guineas are “goods and chattels,” in The common law sense of the terms, and as such, subjects of larceny; and it is somewhat difficult, therefore, to account for the decision in Rex v. Guy, upon the principle above stated. Mr. East supposes the decision to have proceeded upon the ground, that the statutes extended only to the receipt of such kind of goods and chattels, the property in which, being generally, and in its own nature, capable of being ascertained by outward marks and circumstances, made it more difficult for the thief to dispose of them without the aid of a receiver, by whom he was encouraged and protected, whereas money has no such distinguishing marks. 2 East, P. C. 748; 2 Russ. Crimes, 1307, 1308. This ground seems wholly unsatisfactory; for if larceny might be of money at the common law, which cannot be doubted (Hawk. P. C. bk. 1, c. 32, § 35; 2 Bl. Comm. 387), there seems no just reason, why the accessorial offence should not, if the words of the acts did not convey any restriction, be held co-extensive with the principal offence. The ground, however, such as it is, is inapplicable to the principal offence, and is limited to receivers. In Rex v. Morris, 2 Leach, 525, it was decided, that the receiver of bank notes, knowing them to be stolen, was not punishable as an accessory under the statute of 3 W. & M. e. 9, and 5 Anne, e. 31, notwithstanding the express declaration in the statute of 2 Geo. II. c. 25 (2 East, P. C. 598), that if any person shall steal any bank notes, &c. “he shall be deemed guilty of felony, of the same nature and in the same degree, &c. as if the offender had stolen or taken any other goods of like value, with the money due, &c.” upon the ground, that the latter statute did not reach receivers of bank notes as accessories under the former statutes, but applied only to the principal offender in the larceny. But tins case has been since shaken by the decision in Rex v. Dean, 2 Leach, 693. See 2 East, P. C. 646, 749 ; 2 Russ. Crimes, 883, and note; Id. 1307, 1308. These are the most material eases, and they fall far short of establishing the proposition, that “personal goods” in the act of 1790, do not include coin, or money. In our judgment, it would be an unjustifiable departure from the language of the legislature to hold, that coin and money are not included within the prohibition. They are equally within the terms and the reason of the enactment.

In respect to the bank bills included in the indictment, there is much more difficulty. I agree to the doctrine of Lord Mansfield, in Miller v. Race, 1 Burrows, 457, that bank notes are usually treated in the common business of life as money and cash, and not as goods and chattels, or securities for money. But that case turned upon very different considerations from those, which govern in the construction of penal statutes. There the only point was, whether bank notes, being used as currency, the owner could, in case they were stolen, recover them against a subsequent bona fide holder. The court adjudged, that he could not, upon, sound principles of public policy. Now, there is strong reason to believe, that bank notes were not, before the statute of 2 Geo. II. c. 25, held to be “goods or chattels,” within the meaning of the statutes of W. & M., and Anne, above referred to. This is not decisive; but it affords a presumption, that in the opinion of parliament, it was necessary to punish the larceny of bank notes by a spe-ciñe description, eo nomine. Technically speaking:, bank bills are merely promissory notes for the payment of money; and they may be declared on as such. Young v. Adams, 6 Mass. 182; Perry v. Coates, 9 Mass. 537. They are not in all cases treated as money, though in most instances, for the purposes of civil justice, they are so. In Com. v. Carey, 2 Pick. 47, the court declared, that a bank note might, in an indictment for theft, be described as a promissory note of the bank; and in this respect it was not distinguished from other private choses in action. In Spangler v. Com., 3 Bin. 533, the court seem to have treated bank notes as no otherwise the subjects of larceny than as statutable enactments had made them so. And Yeates, J., on that occasion said, that bank and promissory notes are mere choses in action. But in Com. v. Boyer, 1 Bin. 201, upon an indictment for larceny of bank notes, the court thought, that a description of them as the “goods and chattels” of the true owner was sufficient. The same doctrine is implied in Com. v. Richards, 1 Mass. 337. In People v. Holbrook. 13 Johns. 90, the point was directly decided; and it was held, that in such a case, “goods and chattels” implied property or ownership. But in each of these cases there was a state statute, which made the larceny of bank notes a substantive offence; and in two of them, the state statute was to the same effect as that of 2 Geo. II. c. 25; and it is not impossible, that these considerations had an influence upon the decision.

The doctrine in New York has gone farther; and bank notes have been held liable to be taken in execution upon a fieri facias, as money. Handy v. Dobbin, 12 Johns. 220. This decision would be entitled to very great weight, if it stood wholly uncontra-dicted. But in Massachusetts, an opposite doctrine has been maintained. Perry v. Coates, 9 Mass. 537. Still, there is this material difference between bank notes and other promissory notes, that the former in the common transactions of life are treated as money, and circulate as currency, and therefore have, in themselves, an intrinsic value in the common estimation of mankind. They are at least as much within the policy of the act of 1790 (chapter 30), and as important to be guarded against larceny as any personal property whatsoever. Under such circumstances, the court has been anxious to ascertain, whether bank bills have been in any cases of a penal nature treated differently from any other choses in action; and especially, whether in cases of statuta-ble larcenies, they have been distinguished from other negotiable notes. In Rex v. Dean, 2 Leach, 093, the indictment was for stealing a bank note of the value of $20, the property of J. M., in his dwelling house. The statute of 12 Anne. c. 7. § 1. makes stealing “any money, goods, chattels, wares or merchandises of the value of 40 shillings,” a capital offence. It was objected, that bank notes were not “money, goods, chattels, wares or merchandises,” within the purview of the statute. But the judges were unanimously of opinion, that they were; for that the statute was intended to protect every species of property. But the statute of 2 Geo. II. c. 25 (2 East P. O. 597, 598), already referred to, doubtless had great influence in the decision, since it put the stealing of bank notes upon the same footing as to - nature, degree, and punishment, as the stealing of any other goods; though this ground does not expressly appear in the opinion of the judges. In Rex v. Clarke, 2 Leach (4th Ed.) 1036, the indictment was for larceny of certain bankers’ notes, and for certain pieces of paper, of the value, &e. each stamped, and re-issuable, as bankers’ notes, payable to the bearer. It appeared in evidence, that the notes had been taken up by the bankers’ agents, and were stolen from a parcel in their transit to the bankers for the purpose of being re-issued. The objection was, that the notes, having been* paid, were of no value, and consequently, not the subject of larceny. The prisoner was convicted; and the judges held, that he was rightly convicted. 2 East, P. C. 646, 749; 2 Russ. Crimes, 9S4, 1307, 1308; Rex v. Hammon, 2 Leach, C. C. (4th Ed.) 1089. Mr. Justice Grose, in delivering their opinion, said: “The question submitted in this case to the consideration of the judges was, whether the paper and stamps are, under the circumstances of the case, the subjects of larceny at the common law; or in other terms, whether they are the property of, and of any value to, J. J. and A. L., (the bankers.) who were unquestionably the owners. These gentlemen have paid for the paper, the printing, and the stamps of these papers, which once existed both in character and value as promissory notes. Their character and value as promissory notes were certainly extinct at the time they were stolen. But even in this state, they bore about them a capability of being legally restored to their former character and pristine value. It was a capability, in which these owners had a special interest and property. The act of re-issuing them would have immediately manifested their value, as papers, &c. In what sense or meaning, therefore, can it be said, that these stamped papers were not the valuable property of their owners? They were indeed only of value to those owners; but it is enough, that they were of value to them. Their value to the rest of the world is immaterial. The judges are, therefore, of opinion, that to the extent of the price of the paper, the printing, and the stamps, they were valuable property belonging to the prosecutors.” See, also, Id., 2 Russ. Crimes (2d Eng. Ed. 1828) 147, and note. It cannot escape observation, how strongly every word of this opinion applies to the case of bank notes, which are outstanding; and it is to be considered, that the question on the counts, to which alone the opinion applies, was, as to the larceny at the common law. If bankers’ notes payable to bearer were of the value of the stamps, and paper, and printing, because re-issuable, and therefore to be deemed valuable property, the subject of larceny, a fortiori, bank notes, for which the holder must be presumed to have given value, and which have in his hands a present value as currency, must be deemed such. There is, indeed, such a persuasive good sense in the opinion, that one feels very great difficulty in escaping from its Conclusive effect in cases of the larceny of other mere choses in action. Rex v. Ransom, 2 Leach, 1090, is not so strong in its application. But Rex v. Vyse, 1 Moody, Crown Cas. 218, not only affirmed the doctrine in Rex v. Clarke, but proceeded a step farther. It was there held, that bankers’ notes, so paid and re-issuable, were not only subjects of larceny at common law, but might be described in the indictment, (as in that case they in fact were described,) as “goods and chattels” of the owners.

These cases distinctly show, that in modern times, courts of justice in penal, and even in capital cases, are disposed to look at the real nature of the things .stolen, and though they are in form choses in action, yet, if possessing a real value in possession, to hold them subjects of larceny. The chos-es in action, which were held originally not to be the subjects of larceny at the common law, were those, which had no intrinsic value, (bank notes were not then in existence,) and did not import any property in possession of the person. Can it be truly said, that bank notes, payable to bearer, and passing as currency, have no present value in possession? The present indictment has described them as of the value, which they purport on their face to promise to pay. They pass as money; they are received as money. In courts of justice, they are treated as money. On a declaration for money had and received, proof, that the defendant received bank notes for the use of the plaintiff, would be sufficient to maintain the action. They have a present value in possession, not as a mere promise to pay money, but as money of an immediate, positive, exchangeable value. It seems to us. therefore, that it would be an over refinement to hold, that they are not “personal goods” within the sense of the act of 1790. They are far better entitled to the appellation of “goods and chattels,” than the paid bankers’ notes in Clarke’s and Vyse’s Cases above mentioned.

Besides, the bank notes of the bank of the United States, by the express provisions of the charter (of which, as a public act, we are bound judicially to take notice,) are receivable in payments to the United States; and they have, therefore, a present value, for such purposes, as cash. The same cannot be said of the other bank notes, stated in the indictment. But we are still entitled to consider them as of the present value of their respective denominations, as they are so alleged in the indictment.

If this were an indictment at common law, we might, as to the latter bank notes, have some hesitation, though the Cases of Clarke and Vyse would certainly go far to remove any technical scruples. One reason, why, at the common law, bonds and other choses in action were not deemed subjects of larceny, was, that they could not be used as property in possession by the thief, but were suable only by' the owner. But bank notes, payable to bearer, are not now liable to such a consideration; for they are of present worth and value to the holder, and pass by delivery. We are now construing a public statute; and if we can perceive, that the words of the statute, in common and legal understanding, are large enough to comprehend bank notes, and that the policy of the statute applies to them with at least the same force, that it does to “personal goods” in the most restrictive sense of the terms, we are bound to give that interpretation, which carries the words to the extent of the mischief. We may say, as the judges did in Dean’s Case, 2 Leach, 693, “that the statute was intended to protect every species of property,” which may be deemed valuable property in possession. In the case of Rex v. Robinson, Id. 869, the judges held, that bank notes were a valuable thing under the statute of 9 Geo. I. c. 22, respecting threatening letters, which uses the words “money, venison, or other valuable thing.” See, also, Rex v. Aslett, 2 Leach (4th Ed.) 958; 2 East, P. C. 1110; 2 Russ. Crimes, 1830, &c. But a private promissory note has been held not to be so. Rex v. Major, 2 Leach, 894; 2 East, P. C. 118. A distinction is here manifestly taken between choses in action, which are mere evidences of a debt, and those, which have a present value as currency. It can scarcely be doubted, that under the statute of 30 Geo. II. c. 24, respecting false pretenses, bank notes must have been deemed “money, goods, wares, or merchandises,” although there is no case, now recollected, which turned on that point. See 2 East, P. C. 832.

' Upon the whole, the court are of opinion, that the bank notes stated in the indictment, equally with the coin, are personal goods within the act of 1790, and therefore sentence must be passed upon the prisoner accordingly.