10 Mass. 34

March, 1813

It is not an indictable offence to tear or cut a piece out of a bank note, with intent, with the bill thus altered, and with such piece, together with other pieces of similar bank notes, altered, cut, and torn out, to form other bank notes, with intent to utter the same, and thereby injure and defraud the company issuing such notes.

THE indictment alleged that the defendant, with force and arms, at, &c., on, & c., had in his custody and possession a certain bank bill or promissory note, payable to the bearer, signed in behalf of the president, directors, and company, of the Hallowell, and Augusta Bank, by law licensed and authorized as a bank within this commonwealth, and having the said bill so as aforesaid in his possession and custody, with force and arms tore or cut out a piece of the said bill, and thereby altered the same;--with intent, with said bill so altered, and with the piece so cut or torn out of the same bill together with other pieces of similar bank bills, altered, cut, and torn out, to form other bank bills, with intent to utter and pass the same, and thereby to injure and defraud the said president, directors, and company, against the peace, and the form of the statute, &c.

The defendant was tried during this term, before Thatcher, J., upon his plea of not guilty, and after conviction moved in arrest of judgment for the insufficiency of the indictment, assigning the following reasons in support of his motion, viz.:--

1. Because the defendant is not charged with falsely making, altering, forging, or counterfeiting, any bank bill or promissory note in the indictment described.

2. Because it is not an alteration, within the meaning of any law of the commonwealth, to tear or cut out of any bank bill or promissory note to the defendant belonging, any piece thereof in the manner described in said indictment.

3. Because the defendant is not charged with altering the said bill with intent to utter or pass the same; nor is it alleged that he did in fact pass the same.

Page 35

4. Because the indictment concludes against the form of the statute in such case made and provided; and the defendant, as advised, says that the facts set forth in said indictment, and the allegations therein contained, are not contrary to the provisions of any statute of this commonwealth.

Morton, ( Attorney-General,) being called on by the Court to support the indictment, observed that this was a dangerous practice, and there were no legal means of animadverting upon it, unless it be considered as an offence within the provision of the statute which prohibits the altering of bank bills. It is not necessary to allege an alteration to be made falsely, even in an indictment for forgery. Enough appears in the indictment to show that the defendant intended to pass the bill which he had altered; and if the facts shown do not bring the offence within the statute, the indictment is good at common law, by which an intent to commit a misdemeanor, and an overt act done in prosecution of such intent, is an indictable offence.

[Note.--The method pursued by the defendant, as described by the Attorney-General, was to collect a number, say seven bills of the same bank, and of the same denomination or value, and to take a strip perpendicularly from each bill, uniting the parts thus separated, and with the several strips united to form an eighth bill.]

J. T. Austin for the defendant.

By the Court. This is a non-descript offence. It is not within the provision of the law against altering bills, which means such an alteration as will increase the apparent value of the bill. If there is danger of the growth of this practice, the legislature will provide a statute to meet the evil. If the defendant had completed what may be presumed to have been his intent, and had made an eighth bill, perhaps this would have been forgery.

Judgment arrested. [Note a]

Page 36

The Attorney-General then moved the Court that the defendant should be held to recognize for his appearance to answer to a new indictment for forgery.

But the Court refused to sustain the motion, on the ground that the declaration of rights [Note 1] has provided that every subject shall be secure from the seisure of his person, unless upon a warrant, the cause of which shall be previously supported by oath or affirmation.


[Note a] [ Smith vs. Brown, 1 Wend. 231.-- Conn. vs. Smith, 7 Pick. 137 --F. H.]

[Note 1] Article 14.