ence between section 5431 and section 5434 in respect to the punishment prescribed. The prisoner has been convicted of the several offenses charged in the indictment. Each count, charging a separate and distinct offense, is, in legal effect, a separate indictment, and a conviction thereon may be followed. by a sentence imposing such punishment as the statute has prescribed for that offense. The statute, in permitting the joinder of different offenses in a single indictment, and even the consolidation of two or more indictments, by necessary implication authorizes a separate punishment for each offense proved. Otherwise, a conviction of offenses permitted to be joined would be the same, in effect, as an acquittal. We have now considered all the points in behalf of the prisoner that can be claimed to be worthy of notice, and find no ground upon which to grant a new trial or arrest the judgment. The motions are therefore denied.

§ 2356. Draft-Right to draw. Upon an indictment for the forging of a draft under the act of Maryland of 1799, using the words "draught for the payment of money, or delivery of goods, or other valuable articles," it was considered no objection that the indictment did not aver that the person whose name was forged as drawer had a right to draw. United States v. Bates, 2 Cr. C. C., 1.

§ 2357. Indorsements. In an indictment for forging a bill in the name of a fictitious drawer and indorser, it is not necessary to set out subsequent indorsements. United States v. Peacock,* 1 Cr. C. C., 215.

§ 2358. Setting out a note.- An indictment for forging a note must set forth the note clearly and accurately. Where, in the indictment, the signature to the note was written "W. Marbury," and the signature to the note was "Wm. Marbury," the court refused to allow the note to be given in evidence. United States v. Smith, 2 Cr. C. C., 111. See § 2314.

§ 2359. Alteration.- An indictment charging the defendant with having falsely and fraudulently altered a certain abstract of account by obliterating certain words is not a sufficient indictment for forgery, where it does not contain the technical term "forged or "counterfeited." (CRANCH, C. J., dissented.) United States v. Watkins,* 3 Cr. C. C., 441.

§ 2360. Bank order - Variance.— Where an indictment for passing a counterfeit bank order charges the order to purport to be drawn on the cashier of the corporation of the president and directors of the Bank of the United States; and the order is drawn on the cashier of the Bank of the United States, the indictment will be held good, if it follows the language of the statute, and the order will be received. The cashier of the bank is the cashier of the corporation, and an order drawn on him is drawn on the corporation. United States v. Hinman,* 1 Bald., 292. See § 2316.

$2361. Expiration of charter of corporation.- An indictment may be good, under the penitentiary act for the District of Columbia punishing any person who shall pass, utter or publish as true "any falsely made, uttered, forged or counterfeited paper writing, or printed paper, to the prejudice of the right of any other person, body politic or corporate," although the charter of the bank whose notes are charged to have been forged had, at the time of the alleged forgery, expired by its own limitation, the bank being still in existence under a provision in its charter that, "notwithstanding the expiration of the term for which the said corporation is created, it shall be lawful to use the corporate name, style and capacity for the purpose of suits; for the final settlement and liquidation of the affairs and accounts of the corporation; and for the sale and disposition of their estate, real, personal and mixed.” United States v. Noble,* 5 Cr. C. C., 371.

§ 2362. Purport of note or bill.- An indictment under the eighteenth section of the charter of the Bank of the United States, declaring that "if any person shall pass, utter or publish, or attempt to pass, utter or publish, as true, any false, forged or counterfeited bill or note purporting to be a bill or note issued by order of the president, directors and company of the said bank," he shall be adjudged guilty, etc., will be held to be bad if it does not aver that the forged note purported to be a bill or note issued by the order of the president, directors and company of the said bank. Ibid. See § 2322.

§ 2363. Intent.- Where one was convicted upon trial of an indictment based on section 5463 of the Revised Statutes, charging him with having forged a material indorsement upon a postoffice money order, with intent to defraud A. B., it was held that the intent to defraud is the element of the offense, and the indictment need not have alleged an intent to defraud the United States. United States v. Morris,* 16 Blatch., 133. See § 2327.

§ 2364. Under the nineteenth section of the charter of the Bank of the United States, punishing any person who shall have in his custody or possession any blank note or notes, bill or bills, engraved and printed after the similitude of any notes or bills issued by said corporation, with intent to use such blanks, or cause or suffer the same to be used, in forging or counterfeiting any of the notes or bills issued by said corporation," there is no objection to an indictment using the language of this section, one count of which charges an intent to defraud the corporation, and the other with intent to defraud the person or persons to whom the same should be uttered and passed. United States v. Noble,* 5 Cr. C. C., 371.

$2385. The intent to pass, etc., constitutes no part of the crime of falsely making, forging or counterfeiting the coin of the United States, as defined by the act of congress of 1825. An indictment which charges, in the language of the statute, that the defendant "did falsely make," etc., is sufficient without alleging any intent to pass or defraud. The intent to pass as true, and to defraud, which is made an ingredient of a distinct offense defined by the same act, viz., the passing, etc., or bringing into the United States with intent to pass as true, knowing the same to be falce, with intent to defraud, does not relate to the offense of false making. United States v. Peters,* 2 Abb., 494.

$2366. An indictment for forgery must allege the offense to have been committed with the intention of defrauding some person or corporation, and this allegation must be proved as laid. This is the general rule, but it must be taken with this qualification: If a person in whose name a forged note, bill, order or check is drawn, or the one on whom it is drawn, would, if genuine, be bound to pay it, the law infers and takes, as proved, the intention to defraud and injure such person, from the act of forging, or knowingly passing such paper. It is not necessary that any actual injury be sustained or fraud practiced in fact, on the person who was the subject of meditated fraud or injury. This part of the offense consists in mere intention, and if that intention can be consummated, the offense is complete. United States v. Shellmire,* Bald., 370.

2367. Name of person to whom counterfeit was passed.-Section 2 of the act of May 16, 1856, and section 21 of the act of March 3, 1825, provide, in substance, that if any person shall forge or counterfeit a five-cent piece, composed of copper and nickel, or shall pass any such forged or counterfeited coin with intent to defraud any body politic or corporate, or any other person or persons whatsoever, he shall be deemed guilty of a felony. An indictment under these acts for uttering and passing, etc., which charges the intent to defraud a certain person, naming him, need not aver the name of the person to whom the counterfeit coin was passed. United States v. Bejandio,* 1 Woods, 294.

§ 2368. Averment as to prejudice.- Under the penitentiary act for the District of Columbia, declaring that "every person duly convicted of having passed, uttered or published, or attempted to pass, utter or publish, as true, any such falsely made, uttered, forged or counterfe.ted paper writing, or printed paper, to the prejudice of the right of any other person, body politic or corporate, or voluntary association, knowing the same to be falsely made,” etc., “with intent to defraud such person, body politic," etc., "shall be sentenced," etc., an indictment must allege the act to have been done to the prejudice of the right of another person, etc. United States v. Noble,* 5 Cr. C. C.. 371.

§ 2369. An indictment under the eleventh section of the penitentiary act of March 2, 1831, declaring "that every person duly convicted of having uttered as true any such falsely made, altered, forged or counterfeited paper writing or priated paper, to the prejudice of the right of another person,” etc., “knowing the same to be falsely made," etc., "with intent to defrand such person," etc., "shall be sentenced," etc., which charges the common law offense, and also describes the offense according to the act of Maryland of 1799, ch. 75, need not charge in the exact language of the act that the uttering was "to the prejudice of the right of any other person." Nor need the indictment state that the check uttered was "a paper writing or printed paper." (CRANCH, C. J., dissented.) United States v. McCarthy,* 4 Cr. C. C., 304.

2370. Certificate issued by an officer.- An indictment for forgery, under the nineteenth section of the act of March 3, 1825 (4 Stat. at L., 120), in altering a particular certificate authorized to be issued under the law of March 2, 1799 (1 Stat. at L., 659), by the supervisor of a port, alleged that the certificate in question was issued by the collector, by virtue of his office. Held, that the indictment was bad notwithstanding the law of March 3, 1803 (2 Stat. at L., 243), which gave the president power to designate some other officer to perform the duties of supervisor, and although the collector was performing these duties, for if designated the indictment should have alleged that it was issued by the collector acting in his capacity as supervisor. United States v. Schoyer,* 2 Blatch., 59.

§ 2371. No allegation of forgery.- An indictment making the offense to consist in having, **ostensibly for the public service, but falsely and without authority, caused and procured to be issued from the navy department of the United States," a certain requisition, admits the VOL. XII-41 641

requisition to have been a true one, and, containing no allegation that the defendant forged and counterfeited it, does not charge the crime of forgery. United States v. Watkins,* 3 Cr. C. C., 441.

§ 2372. Charging an erasure.- An allegation that an erasure was made by the defendant as a false pretense for obtaining money is not good, where the indictment itself shows that the erasure was made after the money was received. An averment that the erasure was made in order to enable the defendant to keep the money is likewise of no value, where the offense charged is not the keeping of the money, but the obtaining it by false pretenses. An allegation that the erasure was made in order to consummate the fraud is worthless, where the indictment shows that the fraud had been consummated before the erasure. That the erasure was made with intent to conceal the fraud is a worthless averment, where the charge is for perpetrating, and not concealing, the fraud. Ibid.

5. Violation of Internal Revenue Laws.

[See VIII, supra.]

SUMMARY - Removal of spirits; duplicity, § 2373; averment that taxes were not paid, § 2374; need not allege time of removal, § 2375.— Defrauding government of tax, § 2376. — Carrying on business of retail liquor dealer without a license, § 2377.— Dealing in tobacco without paying special tax, § 2378.— Keeping billiard table without payment of tax, §§ 2379, 2380.- Negativing exceptions in statutes, § 2381.— Unlawfully using a still, §§ 2382, 2386; charging the intent. §§ 2384, 2390, 2391.- Need not allege special acts of keeping distillery, §§ 23×5, 2386.— Proof as to strength of spirits distilled, § 2387.— New law going into operation, § 2388.— Executing a fraudulent bond, § 2389. — Acts showing attempt to defraud should be alleged, when, § 2391.- Failure to cancel stamps, § 2392.— Partners making a false return, § 2393.

§ 2373. Where an indictment under section 3296 of the Revised Statutes charges the removal of spirits on which the tax has not been paid to a place other than the distillery warehouse, and the concealment thereof, the indictment is not bad for duplicity, for the concealment charged is only of the spirits removed, and the whole thing is but one transaction. United States v. Nunnemacher, § 2394-99.

§ 2374. An allegation in an indictment that the tax on certain spirits fraudulently removed had not been paid is a sufficient showing that the taxes were, at the time of such removal, due and owing. Ibid.

§ 2375. In an indictment for fraudulently removing spirits from a distillery to a place other than a distillery warehouse, without payment of the tax thereon, it is not necessary to allege the time when the spirits were distilled. Ibid.

§ 2376. Under an indictment charging the defendant in one count with defrauding the government of the tax on spirits distilled by him, and under the other with engaging in the business of distiller with the unlawful intent to defraud the government of the tax on such spirits, the prosecution is not confined to the first act of selling it attempted to prove, but all acts, however numerous, which show, either that the accused defrauded the government of the tax, or carried on the business with that intent, are admissible. Each such separate sale is not a distinct offense, but together they show the design and the intent, and are acts by which the fraud was perpetrated. United States v. Staton, §§ 2400, 2401.

§ 2377. An indictment which charges the defendant, in the language of the statute, with carrying on the business of a retail liquor dealer at a certain place and between certain dates, without having paid the special tax or license, is sufficient. It need not state how or the means whereby he became such a dealer. United States v. Howard, §§ 2402-2406.

§ 2378. All persons dealing in tobacco not being liable to pay a special tax, an indictment for being a dealer in tobacco without payment of the special tax must state some particular circumstances necessary to make the defendant liable to pay a dealer's tax. Ibid.

$2379. Under a statute prescribing a penalty for keeping a billiard table without first paying a special tax, any person who appears to be, and for the time being is, in possession and control of a place or building where a billiard table is kept for public use, is prima facie the proprietor of the billiard room, and liable to pay this special tax; and this, although the general property and the ultimate control of the place and table be in some one else. Ibid.

§ 2380. An allegation that the defendant “carried on the business and occupation of keeping and running a billiard table" in a particular building is equivalent to an allegation that he carried on the business, etc., of keeping a billiard room, and that he was, for the time being, the proprietor thereof. Ibid.

§ 2381. The last clause of section 78 of the act of congress of July 2, 1868 (15 Stat. at L., 159),

contains no exception which must be negatived in an indictment founded upon it. United States v. Imsand. § 2407-2409.

§ 2382. It is not necessary in an indic ment for unlawfully using a still and other distilling apparatus to allege that the spirits distilled were alcoholic, where it is charged that the apparatus was used "for the purpose of distilling, within the intent and meaning of the internal revenue laws of the United States." United States v. Simmons, § 2410-14.

§ 2353. Where an indictment charges the defendant with causing to be procured certain apparatus for the distillation of liquors, it is not necessary to set forth the means whereby the unlawful use of such apparatus was procured. Ibid.

$2354. An indictment charging a person with carrying on "the business of a distiller .. with the intent to defraud the United States," etc., is sufficient. It sufficiently alleges an unlawful act, and it is not necessary to set out the particular means by which the United States was to be defrauded, nor to set out the different acts by which the intent charged was manifested. Ibid.

§ 2385. An indictment for carrying on a certain trade or business, as that of distiller, without having first paid the special tax, need not set forth the particular acts which make up the trading or the keeping of a distillery. To charge the acts as having been done on divers days between two certain days is sufficient. United States v. Fox, §§ 2415-18.

§ 2386. "Then and there distilling and manufacturing spirits to a very large amount, to wit, the number and amount of one thousand gallons of proof spirit," is a good allegation that the defendant did then and there distill. Ibid.

2387. An allegation in an indictment for being engaged in distilling, that the defendant distilled one thousand gallons of proof spirit, does not confine the government to show the manufacture of a spirit at the exact strength of first proof, as established by another part of the statute, that is, one-half alcohol. The expression "gallons of proof spirit" is not intended to be descriptive of the kind or strength of the spirit distilled, but only of the quantity according to the statute standard. Ibid.

§ 2388. An indictment charging the defendant with carrying on the business of distiller from September 1, 1866, to December 10, 1866, without paying the tax required by the act which went into effect on September 2, 1866, should allege that the defendant began business under the new law, or that he was not licensed under the old law, under which licenses ran from May to May, or that, having been so licensed and having been assessed an additional fee under the new law, he had not paid it. Ibid.

§ 2389. An indictment under the forty-second section of the act of July 13, 1866 (14 Stat. at L., 162), charged the defendant with executing, procuring to be executed, and conniving at the execution of, a fraudulent bond by which the payment of certain taxes was evaded. Held, that it was not necessary to set out the particulars in which the bond was fraudulent, or the manner in which the taxes were evaded, or the manner in which the defendant executed the bond or procured or connived at its execution. United States v. Henry, §§ 2419-21.

§ 2390. An indictment charged that the defendant did engage in and carry on the business of a distiller, etc., with intent then and there to defraud the United States of the tax due on each and every gallon of one thousand gallons of proof spirits thereafter to be distilled by him. Held, that it was not necessary to set out facts showing the intent of the defendant, but that the allegation was sufficient. United States v. Ulrici, §§ 2422-28.

§ 2391. An indictment charged in one count that the defendant, being engaged in the business of distilling at a certain place, did, while so engaged, attempt to defraud the United States out of taxes imposed by law. Nothing was said as to the intent of the defendant or as to the way in which the defendant attempted to defraud the government. Held, that some acts showing the attempt should have been specified, and that the count was bad. Ibid. § 2392. It is a crime for any person not to cancel the stamps on any package of distilled liquors emptied by him, and an indictment for that offense need not charge that the failure was wilful and intentional. Ibid.

§ 2393. Where two persons composing a partnership make and sign a false return to the assessor of internal revenue in the firm name they may be indicted jointly. United States v. McGinnis, § 2429-30.

[NOTES.-See §§ 2431-24 6.]

UNITED STATES v. NUNNEMACHER.

(Circuit Court for Wisconsin: 7 Bissell, 129–141. 1876.)

STATEMENT OF FACTS.- Proceedings had under an indictment charging the defendants with unlawful removal of spirits. Defendants now moved to quash the indictment for duplicity. In the first count of the indictment it is all ged

that defendants, on the 18th of December, 1874, removed, and abetted the removal of, three thousand five hundred proof gallons of spirits from the distillery of one Guenther to a place other than the distillery warehouse of the said Guenther, the tax on the same not having been paid, and that they concealed, and abetted in the concealment of, said spirits. In the second count it is alleged that three thousand gallons of spirits were removed and concealed by them on the 21st of December, 1874.

Opinion by DYER, J.

or

The statute, section 3296, provides that, "whenever any person removes, or aids or abets in the removal of, any distilled spirits, on which the tax has not been paid, to a place other than the distillery warehouse provided by law, conceals or aids in the concealment of any spirits so removed, or removes or aids or abets in the removal of any distilled spirits from any distillery warehouse, or other warehouse for distilled spirits authorized by law, in any manner other than is provided by law, or conceals or aids in the concealment of any spirits so removed, he shall be liable" to certain penalties.

The two counts mentioned are based upon the first general division of this section, and a motion is made to quash these counts on the ground of duplicity, it being claimed that the removal and concealment of spirits as mentioned in the statute, and according to the terms of the statute, are distinct and independent offenses, which cannot be properly joined in one count. It will be noticed that the section of the statute in question contains two general divisions: 1st, the removal of distilled spirits to a place other than the distillery warehouse provided by law, or the concealment of spirits so removed; 2d, the removal of distilled spirits from a distillery warehouse, or other warehouse authorized by law, in any manner other than is provided by law, or the concealment of spirits so removed. I have had some doubt whether each of these divisions of the section was not intended, on its face, to express substantially one offense. But I am not willing to rest the question absolutely on such a

construction.

count.

§ 2394. A count in an indictment charging two distinct offenses is bad. It is a general rule that a count in an indictment which charges two distinct, independent offenses is bad, and should be quashed on motion. Whart. Cr. L.,, § 382. A capital offense and a misdemeanor cannot be charged in the same United States v. Sharp, 1 Pet. C. C., 131. An indictment for forgery, stating two distinct offenses, as the forging of a mortgage and of a receipt indorsed thereon, and requiring different punishments, has been held bad. 1 Whart. Cr. L., § 382. A count charging horse stealing and ordinary larceny, for which offenses different punishments are imposed, cannot be sustained. State v. Nelson, 8 N. H., 163. The general rule that the joinder of two or more distinct offenses in one count is not permitted is elementary. The point of difficulty is what are two or more offenses within the rule.

§ 2395. the rule and its exceptions.

There are certain exceptions to the rule in the case of particular offenses, as in burglary, adultery, etc., where the specific accusation includes an offense of an inferior degree (1 Whart. Cr. L., § 383, 384), but these are not material here. Recognizing the rule on this subject as general and elementary, I find as the result of my examination of the numerous cases where the principle has been enforced, that the prevailing feature of these cases is, that the offenses charged in the same count were either inherently repugnant, or so distinct that they could not be construed as different stages in one transaction, or involved