to be effected, and this the respondents' counsel contend is insufficient. Where the intent or purpose is made a part of the offense, as in this case, the intent should be alleged in the indictment, and must be proved. 1 Chit. Cr. L., 233; 1 Whart., 302, § 297; Archb. Pl. & Ev., 46; State v. Card, 31 N. II., 510. But the means of effecting the criminal intent, or the circumstances evincive of the design with which the act was done, are considered to be matters of evidence. to the jury to demonstrate the intent, and not necessary to be incorporated in the indictment. 1 Whart., 294. The particular manner in which a thing is to be done need not generally be alleged. In an indictment for an assault with intent to kill, it is not necessary to state the instrument or means used to effectuate the murderous intent. 1 Whart., 292. 1 Whart., 292. The point made in this case was expressly decided in Powel's Case, 2 East, P. C., 989; to be found, also, in 2 Russ., 384.

$2347. Evidence admissible to prove intent.

3. The application of Hannah Smith for a pension was properly admitted in evidence as showing the use to which the false affidavits were to be applied by the respondents, and their purpose to obtain for her a pension improperly, and thus defraud the government. It was necessary to prove this purpose or intent. Archb., 98; 1 Whart., 631.

§ 2348. What is necessary to constitute the offense declared by Revised Statutes, section 5418.

4. The district attorney offered in evidence, in succession, the three affidavits mentioned in the indictments, to the introduction of each of which the respondents objected on the ground of immateriality, and because it was not alleged or attempted to be proved that the justice of the peace before whom they were sworn to was qualified to take affidavits or administer oaths. To decide this point intelligently and correctly it is necessary to examine the statute on which these indictments are founded, and to ascertain its scope, meaning and intent. If "the false making" there mentioned be false swearing, and the offense be in the nature of perjury, then very clearly it should have been averred in the indictment that they were sworn to before a person competent to administer an oath, naming such person or court; but if the false making be forgery then it was not necessary to allege anything about the oath. The crime might have been completed without taking any oath at all. The signatures of the party and magistrate, and the jurat, might all have been forged and the offense completed,- the false making accomplished.

What, then, is this statute? What is the offense described in it? Is it perjury or forgery, or both? It is in these words: "That if any person or persons shall falsely make, alter, forge or counterfeit, or cause or procure to be falsely made, altered or counterfeited, or willingly aid or assist in the false making, altering, forgery or counterfeiting, any bond, bid, proposal, guaranty, security, official bond, public record, affidavit, or other writing, for the purpose of defrauding the United States," etc.

The indictments in this case seemed to have been framed upon the idea that the false making mentioned in the statute was in the nature of perjury, because, after reciting the affidavits, they go on to allege in what particulars they are false. But we are satisfied that it is not the true construction of the statute. A little analysis and attention to its language makes this quite apparent. It says, "if any person shall falsely make, alter, forge or counterfeit." Now the arrangement and connection of these words, putting the "false making" with other apt words to describe forgery, to wit, altering, forging, counterfeiting, in

dicate its true intent and meaning that it is aimed at forgery and not at perjury. Again, "if any person shall falsely make, alter, forge or counterfeit any bond," bid, etc. Now, what is the false making of a bond or bid? Certainly not taking a false oath, because the execution of a bond or bid requires no oath. To falsely make an affidavit is one thing; to make a false affidavit is another. A person may falsely make an affidavit, every sentence of which may be true in fact. Or he may actually make an affidavit, every sentence of which shall be false. It is the "false making" which the statute makes an offense, and this is forgery as described in all the elementary books. Hawkins says (chapter 70, § 1): "Forgery, by the common law, seemeth to be an offense in falsely and fraudulently making or altering any matter of record," etc. Chitty follows Hawkins (vol. 3, p. 1022): "Forgery may be defined to be the 'false making." Blackstone defines it to be the fraudulent making. Vol. 4, p. 245. Russell (vol. 2, p. 318) says not only the fabrication and false making constitute the crime, but the alteration, etc. Wharton quotes Blackstone and East, and calls it the false making. 2 Whart., § 1418. Roscoe, the same. Cr. Ev., 487.

The allegation and proof required by the respondents' counsel was not necessary, for it is quite evident an affidavit might be falsely made when no oath whatever might have been taken. But it is also contended, by the respondents' counsel, that these indictments are bad because they profess to set out the affidavits only in their substance, and not in words and figures, or other apt words to indicate that they are literally copied. The words of the indictment are: "Which said false and fraudulent affidavit and writing was then and there of the substance following,- that is to say;" and the court think that is not sufficient. The offense described in the statute on which these indictments are founded is forgery, and it has always been held necessary in such cases to set out literally the paper alleged to be forged. The statute (2 & 3 Wm., p. 4, ch. 123) would seem to have obviated that necessity in England, but it has no effect here. The authorities are very numerous and uniform. Archb. Cr. Pl. & Ev., 42, and cases there cited; 2 Whart., 1468; 1 Whart., 306; 2 Russ., 374; 1 Chit., 230; State v. Bryant, 17 N. H., 323; Commonwealth v. Houghton, 8 Mass., 107; State v. Parker, 1 Chit., 293; People v. Kingsley, 2 Cow., 522; United States v. Britton, 2 Mason, 464.

There are some cases where the instrument need not be set out, as when the prisoner has it in his possession or has destroyed it. Commonwealth v. Houghton, 8 Mass., 107; United States v. Britton, 2 Mason, 464. Wharton says (vol. 1, § 307): "Where the indictment fails to claim to set out a copy of the instrument in words and figures it will be invalid." And, again (vol. 2, § 1468): "The indictment should not only set forth the tenor of the bill or note forged, but it should profess to do so." The obvious reason is that the court may see, on inspection of the indictment, that an offense has been committed, if the facts be proved. This objection is well taken, is fatal to these indictments, and the judgments must be arrested. Defendants discharged.

UNITED STATES v. BENNETT.

(Circuit Court for New York: 17 Blatchford, 357-363. 1879.)

Opinion by BENEDICT, J.

STATEMENT OF FACTS.- The prisoner was tried upon an indictment containing six counts. The first five counts are framed under section 5431 of the Revised

Statutes of the United States, and the sixth under section 5434. Having been convicted he now moves for a new trial and in arrest of judgment.

§ 2349. It is no variance that an indictment does not exhibit a seal of the treasury, and the notes given in evidence show such a seal.

The main question presented on the motion for a new trial is raised by an exception to the admission in evidence of the counterfeit notes offered to prove the several charges in the indictment, on the ground of variance; first, because each note exhibits what purports to be the imprint of the seal of the treasury, while the notes set forth in the indictment exhibit no such imprint. It is contended that the provision in section 5172, authorizing the issue of circulating notes by a banking association, which declares that the notes shall "express upon their face that they are secured by United States bonds deposited with the treasurer of the United States, by the written or engraved signature of the treasurer and register, and by the imprint of the seal of the treasury," renders the imprint of the seal a part of the contract, necessary to its validity, and, therefore, necessary to be set out, and proved as laid. But it is evident from the language of the statute, just cited, that the imprint of the seal of the treasury is simply intended to be evidence in regard to the security of the contract and forms no part of the contract itself. An indictment of this character is sufficient if it sets forth so much of the note as contains the evidence of the contract, and so much is set forth in this instance. To that extent the notes admitted in evidence correspond exactly with the notes in the indictment, and prove the substance of the charge, although they exhibit, in addition, what purports to be the imprint of the seal of the treasury.

§ 2350. It is no variance that the indictment describes "circulating notes of a banking association" as "national bank currency notes."

It is next contended that there is a fatal variance because the notes admitted in evidence are circulating notes of a banking association, while the notes set forth in the indictment are styled therein national bank currency notes. Here, the argument is, that section 5413, which provides that the phrase, "obligation or other security of the United States," shall be held to mean (among other things) "national bank currency," has been modified by the use, in section 5434, of the words "any obligation or other security of the United States, or circulating note of any banking association organized or acting under the laws thereof," and that a distinction must now be drawn between the circulating notes issued by a banking association and national bank currency. Section 5431 is claimed to be no longer applicable to such circulating notes, and it is urged that the notes admitted in evidence do not correspond with the description given in the indictment. Upon this question our opinion is that there was no intention to create a distinction between national bank currency and the circulating notes issued by a banking association, by the language employed in section 5434, and that section 5413 is not modified by section 5434. The words "or circulating note," etc., in section 5434, were inserted through excess of caution, no doubt. If there had been the intention to modify section 5413, and thereby to change the scope of section 5415 and section 5431, it may be presumed that such an intention would have been plainly expressed, and not left to follow from a doubtful implication. The notes were, therefore, correctly designated as national bank currency notes, that being the designation of such notes in section 5413. Besides, the notes are set out at length in the indictment, and show on their face that they are circulating notes of a banking association organized under the laws of the United States. The designation of

their legal character, given in the indictment, becomes, then, immaterial. Regina v. Williams, 2 Den. C. C., 61; United States v. Trout, 4 Biss., 105 (S$ 2340-43, supra).

$2351. Variances held immaterial.

Several other points of variance were made at the trial, viz.: that the numbers the figure 5 in the corner - the words, "printed by the bureau of engraving and printing, treasury department," the words, "Act approved June 30," the words "New York" and "U. S.," over the seal,-and the word "Excelsior," which appear on the notes admitted in evidence, do not appear on the notes set forth in the indictment. But these differences have not been relied on here and are immaterial. Comm. v. Stevens, 1 Mass., 203; Comm. v. Bailey, 1 Mass., 62.

§ 2352. A question of evidence. Order of proof.

The only remaining question presented by the motion for a new trial, and calling for attention, arose as follows: At the close of the evidence for the prosecution, a request was made in behalf of the defendant that the court instruct the district attorney to call, as a witness in behalf of the government, one McGuire. The request was refused, and McGuire was not then called. Subsequently, and when the evidence for the defense had been given, the district attorney offered McGuire as a witness to give evidence in rebuttal. Objection was taken to the witness' being allowed to testify, which was overruled, and the witness then gave evidence in rebuttal. To these rulings exception was taken.

The only ground upon which the request for the instruction to the district attorney, and the subsequent objection to the witness McGuire, were placed is that injustice would be done to permit this witness to be informed of the testimony of the prisoner, and then to go upon the stand and contradict him. The case shows that when the instruction to the district attorney was prayed, evidence had been given that McGuire was the person who communicated the fact of the possession of these notes by the prisoner; and that he had said that the prisoner had given him a five-dollar counterfeit note on the day of his arrest. Whether this evidence had been drawn out by the defendant or the prosecution does not appear in the case; but the absence of any objection from the defendant shows that, if not called out by the defense, no point was made in regard to its admission. Whether it was in the power of the district attor ney to produce McGuire while the case was with the prosecution does not

appear.

The ruling objected to seems to relate simply to the order of proof, but, without intending to admit that a ruling of that character is subject to review, we may say that we are unable to see, from the case, that any injustice was done to the defendant by the course pursued. Whether the evidence of McGuire was necessary to make out a case for the prosecution belonged to the district attorney to determine for himself. If McGuire was the bad person supposed by the defense, the district attorney was justified in avoiding, if possible, presenting him to the jury as a witness to establish the case for the gov ernment. What the defendant would testify to could not be foreseen, and, when the defendant's testimony compelled the production of evidence in rebuttal, the right of the prosecution to present such evidence by the testimony of any witness able to testify to the facts is not open to question.

$2353. Absence of seal of treasury.

There remain to be considered the points made in support of the motion in

arrest of judgment. It is said that the notes set forth in the indictment are not valid contracts, owing to the absence of the seal, and, therefore, not the subject of forgery. To this there is one sufficient answer, that, as already stated, the seal of the treasury forms no part of the contract. Again, it is contended the indictment is bad because it avers that the forged note purported to bear the imprint of the seal of the treasury, but omits to give a copy of the seal. It is said that, while it would, perhaps, be unnecessary to say anything about the devices, yet when they are described a fac simile or copy must be given. But if, as has been seen, it was unnecessary in setting forth the note to set forth the seal, stating that the note purported to have a seal cannot affect the validity of the indictment.

§ 2354. Particularity of description. The subject-matter of a former trial may be proved like any other fact.

It is further contended that the indictment is insufficient because, by omitting the numbers on the bills, it renders the record unavailable as a bar to a subsequent prosecution for the same offense. The case does not show that the numbers upon any one of the notes admitted in evidence would identify the

On the contrary, several of the notes exhibit the same numbers. Nor is it necessary that the indictment be so particular that the record will, upon its face, and without extrinsic evidence, identify the subject-matter of the charge. The subject-matter of a former trial is always a matter of evidence and may be proved like any other fact. The books show many cases where such a particularity of description as is here contended for has been held unnecessary.

$2355. Different offenses are properly charged in different counts of the indictment under the acts of congress.

Lastly, it is contended that judgment must be arrested because the indictment charges different offenses, for which different punishments are prescribed by statute; and Tweed's case (People v. Liscomb, 60 N. Y., 559) is cited in support of the objection. An examination of the doctrine declared in that case would be out of place here, because this is a prosecution instituted under a statute of the United States, which permits the joinder of separate and distinct offenses in one indictment, in separate counts. No doubt is entertained that section 1024 of the Revised Statutes permits the joinder in a single indictment, in separate counts, of offenses created by section 5431 and an offense created by section 5434, notwithstanding the fact that the punishment prescribed by section 5431 is a fine of not more than $5,000, and imprisonment at hard labor not more than fifteen years, and the punishment prescribed by section 5434 is imprisonment at hard labor not more than ten years, or a fine of not more than $5,000, or both. It would seem, from the case, that, in this instance, the several charges are for the same transaction, or for transactions connected together. They appear to have occurred at the same time and were proved by the same witnesses. But, if not, the offenses are similar in character, the challenges are the same, and the punishments alike in kind, differing only in degree, and they are, therefore, of "the same class of crimes" within the meaning of section 1024. Whether the joinder was calculated to embarrass the prisoner, and, therefore, the offenses not properly joined," within the meaning of the statute, was a question to be determined by the judge in his discretion, on a motion to quash or to compel an election. Comm. v. Birdsall, 69 Penn., 482.

No difficulty in regard to the julgment to be entered arises from the differ