indictment excused the want of a particular description, by averring that the bond was with the defendant, it was held that this was sufficient. q Although it was said, in another case, the note is described as made on the day of May, and the proof is, that the forged note was dated on a particular day, a conviction will be sustained, notwithstanding the variance, when a satisfactory reason for the omission of a more particular description is given in the indictment. It has been ruled, however, that upon a rule to show cause, the court will not order an attorney of the court to deliver to the state attorney, for the inspection of the grand jury, promissory notes suggested to have been forged, which had been delivered to the attorney in the common course of business by his client suspected of committing the forgery. 8 On the same ground, if the grand jury declare of an indecent libel, "that the same would be offensive to the court here, and improper to be placed on the records thereof;" the non-setting forth of the libel will be thereby sufficiently excused. t Thus in an indictment for publishing an obscene book or picture, it is not necessary that the libel should be set out at large, u but in such case it is necessary specifically to aver the reason of the omission. v Prosecutor's negligence causing the loss. Even in this case, the loss will be an excuse for non-description, unless the negligence was so gross as to imply fraud. v1 Destroyed instrument that afterwards appears. When there is an allegation that an instrument is destroyed, as an excuse for its non-description, there is a fatal variance between the indictment and the proof if the destroyed instrument is produced on trial. v2 Sedgwick, J., 8 Mass. 110; People v. q People v. Kingsley, 2 Cowen, 522. t Com. v. Holmes, 17 Mass. 336. Post, § 2547, for other cases; but see State v. Hanson, 23 Tex. 234. u Com. v. Holmes, 17 Mass. 336; Com. v. Sharpless, 2 Serg. & Rawle, 91; People v. Girardin, 1 Mann. (Mich.) 90; State v. Brown, 1 Williams (Vt.), 619. For form, see Whar. Prec. 952, 968. v. Com. v. Tarbox, 1 Cush. 66. § 312. (f.) When any part may be omitted. Wherever the whole instrument is included in the offence, the whole of it must be set out in the indictment. But where, upon an indictment for forging a receipt, it appeared that the receipt was written at the foot of an account, and the indictment stated the receipt thus: "8th March, 1773. Received the contents above by me, Stephen Withers," without setting out the account at the foot of which it was written, it was holden sufficient.w In all other cases, where part only of a written instrument is included in the offence, that part alone is necessary to be set out. Thus, in cases where portions of publications are libellous and others not, it is only necessary to state those parts containing the libels; and if the libellous passages be in different parts of the publication, distinct from each other, they may be introduced thus: "In a certain part of which said libel there were and are contained the false, scandalous, malicious, and defamatory words and matter following, that is to say," &c. "And in a certain other part of which said libel there were and are contained," &c. x Where the indictment is for forging a note or bill, the indorsement, though forged, need not be set out. y § 313. (g.) When the instrument is in a foreign language, or is on its face insensible. An instrument in a foreign language must be translated and explained by averments. z The proper course is to set out, as "of the tenor following," the original, and then to aver the translation in English to be "as follows." zl And so where initials appear without an averment of what they mean; a and where there is no averment of who the officer was whose name is copied in a forged instrument, there being no averment of what the instrument purports to be. b. w R. v. Testick, 1 East, 181, n. Post, § 1470. 429; R. v. Warshaner, 1 Mood. C. C. 466. As to California, see special stat x See Talbart v. Tipper, 1 Camp. ute. People v. Ah Woo, 28 Cal. 205. 350. Post, § 2590. y Com. v. Ward, 2 Mass. 397; Com. v. Perkins, 7 Gratt. 654; Simmons v. State, 7 Hammond, 116; Com. v. Adams, 7 Metc. 50. Post, § 1469. z R. v. Goldstein, R. & R. 473; 7 Moore, 1; 10 Price, 88. Post, § 1468. 21 Ibid. R. v. Szudurskie, 1 Moody, If the translation be incorrect, the variance is fatal. R. v. Goldstein ut supra; and see 20 Wisc. 239. Post, § 1468. a R. v. Barton, 1 Moody C. C. 141 ; R. v. Inder, 2 C. & K. 635. b R. v. Wilcox, R. & R. C. C. 50. § 314. 2. Where the Instrument, as in Larceny, &c., may be described merely by General Designation. [As to lumping descriptions of notes in larceny, see post, § 354.] In each of the United States, as well as in the federal government, statutes exist making the larceny of bank notes, bonds, and other writings for the payment of money, highly penal. It will not be consistent with the limits of this work to insert here statutes so numerous and so various; but it is apprehended that a brief sketch of the adjudications under them, so far as the present head is concerned, will be of importance to the practitioner. [As to U. S. Treasury notes, see post, § 319, 324 a, 334 a, 337 a, 340 a; and Hickey v. State, 23 Ind. 21, 334, 340; State v. Evans, 15 Rich. (S. C.) 1; State v. Cason, 20 La. An. 48; Com. v. Butterick, 100 Mass. 1; McEntee v. State, 34 Wisc. 43.] § 315. (a.) United States Courts. - Money, and bank notes, and coin, are "personal goods," within the meaning of the sixteenth section of the crimes act of 1790, ch. 36, respecting stealing and purloining on the high seas. c § 316. An order on the cashier of the Bank of the United States is evidence in support of an indictment for forging an order on the cashier of the corporation of the Bank of the United States. d It is not necessary to give a particular description of a letter charged to have been secreted and embezzled by a postmaster, nor to describe the bank notes, particularly, inclosed in the letter. But if either the letter or the notes be described in the indictment, they must be proved as laid. e It is enough to show that the letter came into the hands of the postmaster, in the words of the statute, without showing where it was mailed, and on what route it was conveyed. f § 317. An instrument may be set out in an indictment, according to its legal effect, but if words are used descriptive of the instrument, though they might have been omitted, yet being stated, they must be proved. g. § 318. A slight and unsubstantial variance between the indictment, on a trial for stealing bank notes inclosed in a letter, and the proof, in regard to the direction of the letter, which was f Ibid. c U. S. v. Moulton, 5 Mason, 537. g U. S. v. Keen, 1 McLean, 429. not produced, and which the writer states, after the lapse of two years, with doubt, ought not to exclude the evidence. h § 319. (b.) Massachusetts. An indictment under the act of March 15, 1785, for larceny, alleging that the defendant stole "a bank note of the value of of the goods and chattels of- ," is sufficient, without a more particular description of the note. i "Divers bank bills, amounting in the whole to, &c., and of the value of, &c., of the goods and chattels," &c., has been held sufficient. ¿1 66 Sundry bank bills and sundry promissory notes issued by the United States, commonly called legal tender notes, all said bills and notes together amounting to ninety dollars, and of the value of ninety dollars," is not an adequate description of United States treasury notes. 2 "For the payment of money," need not be averred of a promissory note. ¿3 § 320. (c.) Connecticut. Where an information for theft described the property alleged to be stolen, as "thirteen bills against the Hartford Bank, each for the payment and of the value of ten dollars, issued by such bank, being an incorporated bank, in this State," it was held that this description was sufficiently certain.j § 321. (d.) New York. A contract, not under seal, is incorrectly described as a bond, and the error is fatal. k § 322. Where the indictment stated that the defendant stole "four promissory notes, commonly called bank notes, given for the sum of fifty dollars each, by the Mechanics' Bank in the city of New York, which were due and unpaid, of the value of two hundred dollars, the goods and chattels of P. C. then and there found," &c.; it was held a sufficient description, without saying they were the property of P. C. The word chattels denotes property and ownership. 7 § 323. Under the New York statute, which makes the stealing of "personal property" larceny, an indictment for grand larceny, h U. S. v. Burroughs, 3 McL. 405. i Com. v. Richards, 1 Mass. R. 337. Larned v. Com. 12 Met. 240; Com. v. Sawtelle, 11 Cush. 142. Post, § 354. 2 Com. v. Cahill, 12 Allen, 540. See Hamblett v. State, 18 N. H. 23 Com. v. Brettun, 100 Mass. 206. in stealing bank notes, alleged that the defendant feloniously stole, took, and carried away ten promissory notes, called bank notes, issued by the Chickopee Bank for the payment of divers sums of money, amounting in the whole to the sum of fifty dollars, and of the value of fifty dollars; ten promissory notes called bank notes, issued by the Aganam Bank, &c., of the goods, chattels, and property of B. M. It was held, on motion of an arrest of judgment, that the indictment was sufficient. It was held also, that it was of no consequence whether the banks were organized within the bounds, and under the laws of New York, or were banks of other states or countries, so far as the allegations in the indictment were concerned; the name of the banks being mentioned by way of description of the property stolen. m § 324. In an indictment for stealing bank notes, it is sufficient to describe them in the same manner as other things which have an intrinsic value, by any description applicable to them as chattels, n § 324 a. "Certain money and bank bills," to wit, "six dollars and eighty-five cents in bank bills, usually called United States legal tender notes, as follows: one bill of the denomination of five dollars, one bill of the value of one dollar, and eighty-five cents in currency, usually known and called postal currency," was held in New York in 1870 not to be an averment sufficiently accurate to sustain a conviction for stealing national bank notes and United States fractional currency. n1 It was conceded that to charge the notes simply as "current bank bills of the value of ——, &c.," would have been enough. n2 But it was insisted that when surplus descriptive matter, varying the character of the thing stolen, was introduced, this must be proved. n3 § 325. (e.) Pennsylvania. — Under the act of 15th April, 1790, an indictment for stealing bank notes must lay them as promissory notes for the payment of money, o and, therefore, an indictment for stealing a "ten dollar note of the President, Directors, and Company of the Bank of the United States," is bad. p But "one promissory note," &c., is now sufficiently descriptive. p1 m People v. Jackson, 8 Barbour, 637. n Ibid. n1 People v. Jones, 5 Lansing, 340. n2 People v. Loop, 3 Parker C. R. 559; People v. Quinlan, 6 Parker C.R.9. n3 Green. Ev. § 65. Post, § 629. o Com. v. Boyer, 1 Binn. 201. p Ibid. In Pennsylvania, by the Revised Act of 1860, it is provided as follows: pl Com. v. Henry, 2 Brewster, 566; Com. v. Byerly, Ibid. 568. |