People v. Peabody

Headnote

To constitute the offence of forgery, in counterfeiting the notes of a bank, it is not necessary that such bank as the notes purport to have been issued by, should have a legal existence; it is enough that the notes purport to have been issued by a corporation or company duly authorized to issue notes.

Where, however, the intent is charged to have been to defraud the lank purporting to have issued_ the notes, the bank must be shewn to be a real body, capable of being defrauded. In the case of an association under the general hanking law, it is enough for that purpose to prove the articles of association.

The prisoner was convicted of forgery, at the Tomkins oyer and terminer, in September, 1840, before the Hon. Robert Mosell, one of the circuit judges, and his associates. The fourth count of the indictment charged, that Peabody, on, *&c., at, &c., feloniously had in his [ *478 ] possession a large number, to wit, twenty of forged altered and counterfeit negotiable notes for the payment of money, commonly called bank notes, issued, or purporting to have been issued by a company duly authorized for that purpose, to wit: The Bank of Warsaw; which said forged, altered and counterfeit notes are in the words, figures and letters foL lowing: that is to say, (particularly describing a note purporting to have been issued by th'e bank of Warsaw;) he, the said De Witt C. Peabody, then and there, knowing the same to be forged, altered and counterfeited, with intention to utter the same as false, or to cause the same to be uttered, with intent to injure and defraud the said bank of Warsaw, George Howell, Walter Durkee and others. The district attorney produced an exemplified copy of articles of association of the Bank of Warsaw, bearing date 28th December, 1838, and filed in the secretary’s office, entered into in pursuance of the act to authorize thebusiness of banking, passed April 18, 1838, and proved that a large quantity of bills similar to that set forth in the indictment were found in the possession of the prisoner. The Bank of Warsaw had never- commenced operations, or issued bills. The counsel for the prisoner requested the court to charge the jury that the prisoner could not be convicted, because, 1st. It had appeared, from the evidence, that there was no such institution as the Bank of Warsaw; and 2nd. That if there was

such an institution, it was not an incorporated bank, or institution. The circuit judge charged the jury, that it was immaterial whether there was or was not such a bank in existence as the Bank of Warsaiv ; and that the offence for which the prisoner stood indicted came within the provisions of the Revised Statutes. The counsel for the prisoner excepted to the charge. The jury found the defendant guilty in the second degree ; whereupon the sentence of the court was suspended, and the indictment and bill of exceptions were removed into this court by certiorari.