CHAPTER THE FOURTH. OF RECEIVING, UTTERING, OR TENDERING COUNTERFEIT COIN. In some cases formerly the putting off counterfeit money might amount to treason: as if A. counterfeited the gold or silver coin current, and by agreement before that counterfeiting B. was to take off and vent the counterfeit money, B. was an aider and abettor to such counterfeiting, and consequently a principal traitor within the law. (a) And in the case of the copper coin, B. acting a similar part was an accessory before the fact to the felony, within the statute 11 Geo. 3, c. 40 (now repealed). (b) And if B., knowing that A. hath counterfeited money, put off this false money for him after the fact, without any such agreement precedent to the counterfeiting, he seems to be as a receiver of A. because he maintains him. (c) In some cases treason formerly. demeanor. If A. counterfeited money, and B. knowing the money to be coun- Cheat and misterfeited vented the same for his own benefit, B. was neither guilty of treason, nor misprision of treason. But he might be proceeded against under the 15 Geo. 2, c. 28 (now repealed), before which statute he was only liable to be punished as for a cheat and misdemeanor. (d) Where the defendant was indicted for "unlawfully uttering and tendering in payment to T. H. ten counterfeit halfpence, knowing them to be counterfeit," and convicted on a count laying this generally, upon reference to all the judges they held it was not an indictable offence. (e) And upon the principles which have been mentioned in a former part of this work, (f) the unlawful procuring of counterfeit coin with intent to circulate it, though no act of uttering be proved, is a misdemeanor: and the possession of counterfeit coin unaccounted for was held to be evidence of an unlawful procurement with intent to circulate. (g) (a) 1 Hale, 214. (b) 1 East, P. C. c. 4, s. 26, p. 178. (e) 1 Hale, 214. (d) 1 East, P. C. c. 4, s. 26, p. 179. 1 Hale, 214. See precedents of indictments for a misdemeanor at common law in uttering a counterfeit half-guinea, Cro. Circ. Comp. 315 (7th Ed.) Starkie, 466. 2 Chit. Crim. Law, 116. See also a precedent of an indictment for a misdemeanor at common law, against a man for uttering a counterfeit sixpence, and having another found in his custody, Cro. Circ. Comp. 315. (7th Ed.) 2 Chit. Crim. Law, 117. The uttering of false money, knowing it to be false, is mentioned as a misdemeanor in the recital to the 15 Geo. 2, c. 28, s. 2. There is also a precedent for a misdemeanor at common law, in uttering, and causing to be uttered, guineas filed and diminished as good guineas. Cro. Circ. Comp. 317. (7th Ed.) and 2 Chit. Crim. Law, 116, and also a precedent for a misdemeanor at common (e) Cirwan's case, Oxford Sum. Ass. (ƒ) Ante, Book I., Chap. iii., p. 48. (g) Rex v. Fuller & Robinson, ante 48. The possession in this case was under particularly suspicious circumstances; the coin being wrapped up in parcels with soft paper to prevent it from rubbing. The marginal note to Parker's case, I Leach, 41, states, that " having the possession of counterfeit money, with intention to pay it away as and for good money, is an indictable offence at common law." But qu. if the point stated in the marginal note was actually decided in Parker's case; and sce ante, 48, But the receiving, uttering, or tendering in payment counterfeit money, have been made the subject of legislative provision by several statutes. L. By the 2 Wm. 4, c. 34, relating to the coin of the realm; and, II. By the 37 Geo. 3, c. 126, relating to foreign coin. Uttering counterfeit gold or silver coin; impri sonment. Uttering, accompanied by possession of other counter feit coin, or followed by a second uttering; imprison ment. Every second offence of uttering, after a pre vious conviction shall be felony; Uttering coun terfeit copper coin. SECT. I. Of receiving, paying, putting-off, &c. Counterfeit Coin of the The 2 Wm. 4, c. 34, s. 7, enacts, "that if any person shall tender, utter, or put off any false or counterfeit coin, resembling, or apparently intended to resemble or pass for, any of the king's current gold or silver coin, (i) knowing the same to be false or counterfeit, every such offender shall, in England and Ireland, be guilty of a misdemeanor, and in Scotland of a crime and offence, and, being convicted thereof, shall be imprisoned for any term not exceeding one year; and if any person shall tender, utter, or put off any false or counterfeit coin resembling, or apparently intended to resemble or pass for, any of the king's current gold or silver coin, (i) knowing the same to be false or counterfeit, and such person shall, at the time of such tendering, uttering, or putting off, have in his possession, (j) besides the false or counterfeit coin so tendered, uttered, or put off, one or more piece or pieces of false or counterfeit coin resembling, or apparently intended to resemble or pass for, any of the king's current gold or silver coin, (i) or shall, either on the day of such tendering, uttering, or putting off, or within the space of ten days then next ensuing, tender, utter, or put off any more or other false or counterfeit coin resembling, or apparently intended to resemble or pass for, any of the king's current gold or silver coin, (i) knowing the same to be false or counterfeit, every such offender shall, in England and Ireland, be guilty of a misdemeanor, and in Scotland of a crime and offence, and, being convicted thereof, shall be imprisoned for any term not exceeding two years; and if any person who shall have been convicted of any of the misdemeanors, or crimes and offences, herein-before mentioned, shall afterwards commit any of the said misdemeanors, or crimes and offences, such person shall, in England and Ireland, be deemed guilty of felony, and in Scotland of a high crime and offence, and, being convicted thereof, shall be liable, at the discretion of the Court, to be transported beyond the seas for life or for any term not less than seven years, or to be imprisoned for any term not exceeding four years." (k) By s. 12, "if any person shall tender, utter, or put off any false or counterfeit coin resembling, or apparently intended to resemble or pass for, any of the King's current copper coin, knowing the same to be false or counterfeit, or shall have in his custody or possession (j) three or more pieces of false or counterfeit coin resembling, or apparently intended to resemble or pass for, any of the King's current cop (i) See s. 21, ante, p. 56. See s. 21, ante, p. 70. (k) See s. 19, ante, p. 61, as to hard labour. per coin, knowing the same to be false or counterfeit, and with intent to utter or put off the same, every such offender shall, in England and Ireland, be guilty of a misdemeanor, and in Scotland of a crime and offence, and, being convicted thereof, shall be liable to be imprisoned for any term not exceeding one year." (k) son, &c. with tent, &c.; inprisonment. Second offence, Sec. 8, "that if any person shall have in his custody or possession Having three (7) three or more pieces of false or counterfeit coin resembling, or apor more pieces of counterfeit parently intended to resemble or pass for, any of the King's current gold or silver gold or silver coin, (m) knowing the same to be false or counterfeit, coin in possesand with intent to utter or put off the same, every such offender shall, in England and Ireland, be guilty of a misdemeanor, and in Scotland of a crime and offence, and, being convicted thereof, shall be liable, at the discretion of the Court, to be imprisoned for any term not ex- felony and ceeding three years; (n) and if any person so convicted shall after- transportation. wards commit the like misdemeanor, or crime and offence, such person shall, in England and Ireland, be deemed guilty of felony, and in Scotland of a high crime and offence, and, being convicted thereof, shall be liable, at the discretion of the Court, to be transported beyond the seas for life or for any term not less than seven years, or to be imprisoned for any term not exceeding four years. (n) any offence Sec. 9. "That where any person (nn) shall have been convicted of any offence against this act shall afterwards be indicted for against this act committed subsequent to such conviction, a copy of the previous indictment and conviction, purporting to be signed and certified as a true copy by the clerk of the court, or other officer having the custody of the records of the Court where the offender was first convicted, or by the deputy of such clerk or officer, shall, upon proof of the identity of the person of the offender, be sufficient evidence of the previous indictment and conviction, without proof of the signature or official character of the person appearing to have signed and certified the same; and for every such copy a fee of six shillings and eightpence, and no more, shall be demanded or taken; and if any such clerk, officer, or deputy shall certify or utter as true any false copy of any indictment or conviction for any offence against this act, knowing the same to be false, or if any person other than such clerk, officer, or deputy shall sign or certify any copy of any such indictment or conviction, as such clerk, officer, or deputy, or shall utter any copy thereof with a false or counterfeit signature thereto, knowing the same to be false or counterfeit, every such offender shall, in England and Ireland, be guilty of felony, and in Scotland of a high crime and offence, and, being convicted thereof, shall be liable, at the discretion of the Court, to be transported beyond the seas for any term not exceeding seven years, or to be imprisoned for any term not exceeding two years. (0) What shall be sufficient evidence of a con viction for a previous of fence against this act. Sec. 16. "That no person against whom any bill of indictment Indictments shall be found at any assizes or sessions of the peace, for any misde- not to be traversed except meanor against this act, shall be entitled to traverse the same to any for cause subsequent assizes or sessions, but the Court before which the bill of shown. indictment shall be returned as found shall forthwith proceed to try the person against whom the same is found, unless such person or the (k) See s. 19, ante, p. 61. (1) See s. 21, ante, p. 70. (m) See s. 21, ante, p. 56. (n) See s. 19, nte, p. 61. (nn) "who," seems omitted here. What was considered a putting off counterfeit money within 8 & 9 W. 3, c. 26. Names of persons to whoni the coin is put off to be stated. Passing counterfeit money by the trick of ringing the changes, was within the 15 G. 2, c. 28. Giving counterfeit coin in charity, knowing it to be such, is not prosecutor shall show good cause, to be allowed by the Court, for the postponement of the trial." Under the 8 & 9 Wm. 3, c. 26, s. 6, which had only the words "take, receive, pay, or put off," there must have been an actual passing or getting rid of the money, and not merely an attempt to do so. The prisoner had carried a large quantity of counterfeit shillings to the house of a Mrs. Levey, which she agreed to receive from him, and which he agreed to put off to her at the rate of twenty-nine shillings for every guinea. In pursuance of this bargain, the prisoner laid a heap of counterfeit shillings on a table, and Mrs. Levey proceeded to count them out at the rate beforementioned: and had counted out three parcels, containing eighty-seven counterfeit shillings, for which she was to pay the prisoner three guineas; but before she had paid him, and while the counterfeit money lay there exposed upon the table, the officers entered the room and apprehended them. Mrs. Levey was admitted as a witness for the crown; and swore that she had bought the three parcels of shillings, and was going to pay the prisoner three guineas for them at the moment they were detected. This was ruled not to be a completion of the offence charged, and the prisoner was acquitted. (p) But this case would clearly be within the new act, which has the word "tender" in it. If the names of the persons to whom the money was put off can be ascertained, they ought to be mentioned, and laid severally in the indictment: but if they cannot be ascertained, the same rule will apply which prevails in the case of stealing the property of persons unknown. (pp) The words of the 15 G. 2, c. 28, s. 2, "utter or tender in payment" being in the disjunctive, were held to apply to an uttering of counterfeit money, though not tendered in payment, but passed by the common trick called ringing the changes. The prosecutor having bargained with the prisoner, who was selling fruit about the streets, to have five apricots for sixpence, gave him a good shilling to change. The prisoner put the shilling into his mouth, as if to bite it in order to try its goodness; and, returning a shilling to the prosecutor, told him it was a bad one. The prosecutor gave him another good shilling, which he also affected to bite; and then returned another shilling, saying it was not a good one. The prosecutor gave him another good shilling, with which he practised this trick a third time; the shillings returned by him being in every instance bad. The Court held that the words of the statute were sufficient to include this case; and that uttering and tendering in payment were two distinct and independent acts. (q) It has been held in one case that the uttering must either be with intent to defraud the party receiving the money, or with intent that that party should pass it as the agent of the utterer. Upon an indictinent on 2 Wm. 4, c. 34, s. 7, against husband and (p) Wooldridge's case, 1 Leach, 307. 1 East, P. C. c. 4, s. 27, pp. 179. I have left this case, as it might be useful if an indictment omitted the word "tender." C. S. G. (pp) 1 East, P. C. c. 4, s. 27, p. 180, citing a case from MS. 'Tracy, of a woman who was indicted at the old Bailey, 1702, for putting off ten pieces of counterfeit gilt money like guineas, to divers persons unknown; Holt, C. J., said, that the names of the persons ought to be mentioned and laid severally; yet he tried the prisoner, and she was convicted. Probably the names of the persons to whom the money was put off could not be ascertained. (q) Franks's case, 2 Leach, 64. wife for uttering a counterfeit halfcrown, it appeared that a woman within the sta asked the female prisoner to give her something, as her children tute. were without food, and the male prisoner gave her twopence, and told her that his wife would give her something more, on which she gave the woman the bad halfcrown in question, telling her to get what she could for her children; it was held that, although in the statute there are no words with respect to defrauding, yet in the proof it is necessary to go beyond the mere words of the statute, and to show an intention to defraud some person. There might be cases of a party giving a person a piece of counterfeit money, and at the same time telling that person that it was bad, and yet he would still be liable to be convicted on an indictment like the present, if a case falling within the mere words of the statute were sufficient. (r) charged two utterings on the same day, each in a dif ferent count, the third sec Some points arose as to the form of the indictment upon the 15 Where the inGeo. 2, c. 28. (rr) The indictment charged the prisoner in the first dictment count with having on the 15th December, 39 Geo. 3, uttered to one G. S. a counterfeit half-crown, knowing it to be so, and in the second count with having on the said 15th December, &c. uttered another counterfeit halfcrown to the same person; and the prisoner was the court could convicted on both counts. The question was whether, the uttering not pronounce the counterfeit money twice on the same day being stated in the two the greater counts, the Court could pronounce the greater punishment inflicted punishment of by the third section of the statute, or must give only the smaller tion of the punishment inflicted by the second section; and, upon reference to 15 G. 2, c. 28. the judges, they held that this indictment was not sufficient to subject the prisoner to the larger penalty, as for uttering two pieces of counterfeit coin on the same day, there being no distinct averment of that fact. (s) But where two utterings are charged in one count of the indictment, on a certain day therein named, the day will be held to be material, and the fact of an uttering twice on the same day to be sufficiently averred. As where the indictment charged that the prisoner on the 14th of February, &c. uttered base coin to W. C.; and that on the said 14th February, &c. he uttered to J. L. other base coin, it was held sufficient to warrant the higher punishment of the third section of the statute; the utterings, on the face of the indictment, appearing to be on the same day. And the judges held, that though, when the day is not material, the fact may be proved on a day different from the day laid, yet where the day is not indifferent, the precise time laid must be proved: and that in this case it must be taken that it was proved that the defendant uttered counterfeit coin at two different times of the same day. (t) (7) Rex v. Page, 8 C. & P. 122, Lord Abinger, C. B. As every person is taken to intend the probable consequence of his act, and as the probable consequence of giving a piece of bad money to a beggar is that that beggar will pass it to some one else, and thereby defraud that person; qu. whether this case rests upon satisfactory grounds. In any case a party may not be defrauded by taking base coin, as he may pass it again, but still the probability is that he will be defrauded, and that is sufficient. C. S. G. (rr) Now repealed. (s) Tandy's case, 2 Leach, 833. 1 East. P. C. c. 4, s. 29, p. 182, 183. Eyre, C. J., Buller, J., and Heath, J., were absent when this opinion was given, viz. Hil. T. 1799. The judges also thought it advisable to give judgment of imprisonment for six months singly, and not on each of the counts. And see Smith's case, 2 Leach, 856. (t) Martin's case, Derby Lent Ass. 1801, coram Graham, B., decided by the judges in June, in the same year. 2 Leach, 223. 1 East, P. C. Addend. xviii. MS. Bayley, J. But where two utterings on a certain day named are charged in one count, the fact ciently averred. will be suffi |