United States v. Weikel

8 Mont. 124

• Court: Montana Supreme Court
• Decided: July 15, 1888
• Status: Published

Opinion

De Wolfe, J.

The appellant was jointly indicted with Jesse R. Beckwith and George Morris, for counterfeiting the silver coin of the United States. Pie was tried separately, and convicted in the Fourth Judicial District Court, sitting as a court for the trial of causes arising under the Constitution and laws of the United States. The indictment charges the offense as follows: “ That the said Jesse R. Beckwith, George Morris, and John J. Weikel, at the county of Fergus, in the Territory of Montana, ■and in the Fourth Judical District, and within the jurisdiction of this court, did falsely make, forge, and counterfeit the silver coin of the United States, to wit, the silver coin commonly known and called a ‘ dollar,’ and did make in the resemblance and similitude of the silver dollar (a coin of the United States), certain forged and counterfeit coins of base metal, with intent to defraud certain persons whose names are to the grand jury unknown.” A demurrer was filed to the indictment, which with other causes for demurrer, assigns the following: “Second. Defendants demur to said indictment because the facts stated therein do not constitute a public offense, and of this they pray the judgment of the court.” In the brief on the part of the appellant the point relied on by the demurrer is more accurately stated as follows: ‘(Said indictment is uncertain and indefinite in not stating the number of coins the defendants are charged with making.” The court overruled the demurrer, and the first question for consideration presented by this record is, did the court err in this ruling? It is a well-settled principle of criminal pleading that certainty as to the offense charged is a requisite in all indictments. The defendant is entitled to be informed by the indictment of the exact offense he is called upon to defend. Does the indictment in question fulfill this essential requirement? We think not. It nowhere alleges the number of counterfeit coins made, nor describes the offense, except in the general language quoted. U S. v. Fisler, 4 Biss. 59, contained an indictment against the defendant for having in his possession forged United States treasury notes, and forged United States postal currency, with intent to pass the same, without setting out the number of such treasury notes, or the number of forged United States postal currency which defendant had. After conviction, and on a motion in arrest of judgment, the court, in sustaining the motion in arrest, said: “Indictments ought to be characterized by reasonable certainty of allegation; they should at least be as certain as a declaration at common law. It is a rule in civil pleading at common law that, when the action concerns different things, they must be described by quantity, quality, and number.” (Stephen’s Pleading, 296.) “Unquestionably a declaration in trespass, for taking or destroying divers chattels, would be bad as not stating the number or description. Surely the reason is equally strong for requiring the number of these forged instruments to be stated. The indictment does not do this, but only says divers false, forged, and counterfeit fractional notes, and divers false, forged, and counterfeit treasury notes. It is not pretended that in either civil or criminal pleading the evidence must strictly conform to the allegation of number. In most cases we may allege one number and prove another, without a fatal variance; but some number must in such cases be stated.” The case of Territory v. Shipley, decided by this court, and reported in 4 Mont. 468, was an indictment for larceny, for stealing bank-bills, and the offense charged was set forth in the indictment as follows: “Sundry bank-bills issued by authority of the United States of America, usually known as ‘greenbacks/ amounting in all to the sum of $180, of the value of $180; and sundry bank-bills issued by the authority of the United States of America, usually known as ‘ greenbacks/ amounting in the aggregate to $589, and of the value of $589.” The court held this indictment insufficient in failing to give the number and kind or denomination of the bank-bills, and reversed the case on that ground. Guided by these precedents, and numerous authorities which might be referred to, we think the District Court erred in overruling the demurrer to the indictment; and on this account, if for no other, the cause will have to be reversed, with instructions to the District Court to sustain the demurrer.

As the record in this case alleges other grounds of error relied upon for the reversal of the judgment rendered against the defendant, and as the judgment involves the personal liberty of a citizen, we will consider one other question presented by the record. After the evidence for the prosecution was closed, the defendant, by his counsel, moved the court to instruct the jury to acquit him on the ground that the prosecution had failed to make out a case. This motion the court refused, and in this committed error. There was no evidence on the part of the prosecution proving, or tending to prove, the defendant’s guilt of the crime charged against him in the indictment — of counterfeiting the coin of the United States — and only faint proof of his conspiring with' the other defendants to counterfeit the government coin, aside from his own confession. There was no proof of any counterfeit coin being made by any one; the coin alleged to have been counterfeited being excluded as evidence; and no witness testified that it was counterfeit, or that it was made or uttered by the defendant, or by either of the persons indicted with him. The judgment is reversed, and the cause remanded for a new trial.

Judgment reversed.

McConnell, C, J., and Liddell, J., concur.