People v. White , 34 Cal. 183 ( 1867 )

By the Court, Sanderson, J.:

The point made on behalf of the appellant, to the effect that the seventy-eighth section of the statute in relation to crimes and punishments, under which the indictment was found, is unconstitutional, because it is repugnant to the -Constitution of the United States (Art. I, Sec. 8, Subs. 5 and 6) and the laws of Congress made in pursuance thereof (2 U. S.Statutes at Large, 404 ; 4 Id. 121) has been expressly decided by the Supreme Court of the United States adversely to the views advanced by counsel. (Fox v. The State of Ohio, 5 How. 410; Moore v. Illinois, 14 How. 13.) In the former case it was expressly held that the clause in the Federal Constitution which confers upon Congress the power to coin money and punish counterfeiting does not prevent the several States from also doing the latter.

The laws of Congress, to which we are referred, do not prohibit the States from passing laws on the subject, but on the contrary expressly provide that nothing therein contained shall be construed to deprive the State Courts of jurisdiction to punish for the same offenses under State laws. (2 U. S. Stat. at Large, 405, Sec. 4; 4 Id. 122, Sec. 26.)

To say that the indictment states no offense is to say that the statute defines none, for the former follows, and employs the precise language of the latter, which, as we have uniformly held, is sufficient to make a good indictment. The language of the statute and of the indictment being the same, the latter must be understood in the same sense as the former.

As to the interpretation to be .given to the statute, we agree with the learned counsel for the appellant. We do \ not consider that it was the intention of the Legislature to declare that every person who knowingly has in his possession any of the tools, implements or materials mentioned in the statute; or, in other words, any tools, implements or materials which are or may be used in counterfeiting, without any criminal intent, shall be deemed guilty of crime. To so hold would be to ignore one of the indispensable elements of crime. To constitute crime, in the nature of things and according to the declared will of the Legislature, there must be a joint operation of act and criminal intent, or criminal negligence. (Section 1 of the Act in relation to crimes and punishments.) If the mere making or knowingly having in possession paper and metals which are used in counterfeiting, without any intent to make such' use of them, be a crime, then is every maker of bank paper and every vendor or worker in gold, silver and such base metals as are, or may be used in counterfeiting, guilty of crime. Doubtless there are many tools and implements in use among artisans which are adapted to, or can be, and are made use of by counterfeiters in their business; if so, the same would be true of such artisans. The possession intended to be prohibited is a criminal one, or a possession with a criminal intent. It must be confessed that the language of the statute as found in section seventy-eight does not express this idea in specific terms, but we think it sufficiently appears. But aside from the language of that section the language of several other sections preceding and succeeding it, which define similar offenses, make criminal intent an element of the offense and for the purpose of determining the meaning of the seventy-eighth section they may be consulted. The chapter is devoted to the general subject of “ Forgery and Counterfeiting,” and the different sections are but specifications of the various acts in detail which fall under that head. The forging or counterfeiting of any of the various instruments or things mentioned in the seventy-third section, or the uttering and passing the same, must be done with a criminal intent, as there stated, in order to constitute the crime of forgery. Having in possession, knowingly, counterfeit coin is equally as mischievous, if not more so, as having possession of the means by which it may be made; yet it is not declared a crime unless accompanied by an intent not only to utter and pass it, but to do so with the further intent to defraud. (Sec. 75.) So of the cognate offenses defined in sections seventy-four, seventy-six, and seventy-seven. In view of these various provisions we are satisfied that the seventy-eighth section should be read in the sense already indicated.

In view of the well settled doctrine of this Court that an indictment is sufficient, in substance, if it describes the offense charged in the language of the statute by which it is created or defined, we hold the indictment in this case to be good; but we hold further that its language is to receive the same interpretation as that which we have given to the statute, and that to justify a conviction under it, there must be proof of a criminal intent as well as a known possession.

The instructions of the Court were substantially in accordance with the foregoing views. The jury was told expressly that they must acquit the defendant, unless they were satisfied from the evidence that he knowingly had the tools or implements in question in his possession with a criminal intent.

We cannot disregard the bill of exceptions, as suggested by the Attorney-General, because it was not settled and allowed until nearly a year after the trial. Why there was so long a delay does not appear; but it is settled that the statute in relation to the time within which bills of exceptions should be tendered and settled is directory (Crim. Prac. Act, Sec. 435,) and that this Court will not inquire into the reasons which induced the Judge below to sign them after the time fixed by the statute, but will presume they were sufficient. (People v. Lee, 14 Cal. 510.)

Under the rule announced in Graham's Case, 21 Cal. 265, the bill of exceptions is fatally defective because it does not appear what was the answer to the question to which objection was made. The answer may have been in the negative; and, if so, the defendant could not have been prejudiced. But assuming that the bill of exceptions is not defective for the reason suggested, we are of the opinion that the Court did not err in its ruling, or at least that the record fails to show that the Court erred. Whoever alleges error must show it. The main, or one of the main questions involved in the ease, was whether the tools or implements found in the possession of the defendant were held in possession with a criminal intent, as we have seen. Upon that question we are unable to perceive why testimony showing that he had counterfeit money in his possession at the same time was not admissible. On the contrary, it tended directly to prove that he was engaged in counterfeiting, and that he had the tools and implements "in question in his possession for that purpose.

Judgment affirmed.

Mr. Justice Rhodes expressed no opinion.