The defendant was indicted for receiving Treasury notes of the
United States stolen from the United States mail. The indictment,
in one of the counts, described one of the Treasury notes as
bearing interest annually of one percentum. A Treasury note was
offered in evidence bearing interest at one M. percentum, and parol
evidence was offered to show that Treasury notes, such as the one
offered in evidence, were received by the officers of the
government as bearing interest of one mill percentum per annum, not
one percentum per annum. The court held that
"Treasury notes issued by the authority of the Act of Congress
passed on 12 October, 1838, are promissory notes within the meaning
of the Act of Congress of 3 March, 1825."
The letter "M," which appears on the face of the note offered in
evidence, is a material part of the description of the note.
It would be proper to receive parol evidence for the purpose of
explaining the meaning of the letter "M" and proving the practice
and usage of the Treasury Department and officers of the government
and others, lawful receivers of similar Treasury notes, in order to
show thereby the meaning intended to be attached, and actually
attached, to the letter "M" by the Treasury Department and others,
and that by such meaning the said Treasury note bears one mill
percentum interest, and not one percentum interest.
When a note is given payable in foreign coin, the value of each
coin in current money must be averred, and under such averment
evidence of the value may be received.
James E. Hardyman was indicted in the Circuit Court of the
Eastern District of Virginia for buying, receiving, and concealing
Treasury notes of the United States knowing them to have been
stolen. The Treasury notes were alleged to have been stolen from
the mail of the United States by Winston, a negro man, or by
persons unknown. Winston was at the same time indicted for robbing
the mail of the United States of ten Treasury notes. The indictment
contained four counts charging the defendant with receiving
Treasury notes bearing interest at one percentum and at five
percentum per annum.
The defendant moved the court to quash the indictment upon the
ground that the papers described in the said indictment are not
promissory notes under the act of Congress approved on 3 March,
1825, under which the prisoner is indicted; and the Act of
Congress, approved 12 October, 1837, by virtue of which the said
notes were issued, describes them as Treasury notes, and does not
provide, nor does any other act of Congress provide any penalty for
stealing these notes from the mail of the United States, or
receiving them, knowing them to be stolen, and upon this motion,
the court being divided in opinion, the said indictment was not
quashed.
The Attorney for the United States, further proceeding in the
case, offered as evidence to the jury a Treasury note for fifty
dollars, payable in one year, bearing interest at the rate of one
M. percentum.
The counsel for the accused moved the court to exclude it
from
Page 38 U. S. 177
the jury as evidence upon the ground that it does not answer the
description of any one of the notes set forth in the indictment, as
it bears interest after the rate neither of five percentum nor of
one percentum, but bears an interest after the rate of one mill
percentum, as signified by the letter "M" after the word "one" upon
the face of the said note, and to sustain this motion the defendant
proved by the collector of the port of Richmond that he received
notes such as that above described as notes bearing interest after
the rate of one mill percentum, and not one percentum, and the
government so received them from him, and the letter M aforesaid
was understood to signify and be intended to mean "mill," and also
proved that the Secretary of the Treasury had issued, as far as the
said collector, and another witness who derived his impression from
the Treasurer of the United States, and the officers of the
government, knew and believed, no Treasury note bearing interest
after the rate of one percentum. Upon this motion, the court was
also divided in opinion, not being satisfied that the note did
appear by its face to bear interest after the rate of one mill, and
not being satisfied that it was competent to the defendant by parol
evidence to explain any word or letter upon the face of the said
note, so as to show what its meaning was, either by resort to any
definition of it, or to the exposition of it by the practice of the
Treasury Department, and the officers of the government and the
public, and therefore that it was not competent to the defendant so
to explain the letter "M" aforesaid, which appears on the face of
the said note, and of which no notice is taken in the indictment,
for the purposes of showing that by that letter the makers of the
said note intended to fix the rate of interest at one mill
percentum. And thereupon, upon the motion of the accused, and with
the consent of the Attorney for the United States, the court
adjourned to the Supreme Court of the United States for its
decision, the following questions,
viz.:
1. Are the Treasury notes issued by authority of the act of
Congress passed on 12 October, 1838, "promissory notes" within the
meaning of the Act of Congress approved 3 March, 1825, under which
the prisoner is indicted, and is there a sufficient averment in the
indictment in this cause of the stealing and receiving of such
Treasury notes?
2. Is the letter "M," which appears upon the face of the note
offered as evidence, a material part of the description of the
note?
3. Would it be proper to receive parol evidence for the purpose
of explaining the meaning of the said letter "M" and proving the
practice and usage of the Treasury Department and officers of the
government and others, lawful receivers of similar Treasury notes,
in order to show thereby the meaning intended to be attached and
actually attached to the said letter "M" by the Treasury Department
and others, and that by such meaning the said Treasury note bears
one mill percentum interest, and not one percentum interest?
Page 38 U. S. 178
MR. JUSTICE McLEAN delivered the opinion of the Court: :
The defendant was indicted under the 45th section of the Post
Office law for buying, receiving, and concealing certain promissory
notes called Treasury notes which he knew had been stolen from the
mail of the United States. And, among others, one of the notes was
described in the indictment "as a promissory note called a Treasury
note, for the payment of fifty dollars, with interest at the rate
of one percentum," &c.
On the production of the note in evidence, it was found to be
accurately described in the indictment in all parts which were
attempted to be described except on the face of the note; instead
of the above words of "with interest at the rate of one percentum,"
&c., the words were, "with interest at the rate of one M
percentum."
And the counsel for the defendant moved the court to exclude the
note from the jury for the variance, and to sustain this motion the
defendant proved, by the collector of the customs at Richmond, that
he received notes such as the one described as notes bearing
interest after the rate of one mill percentum, and not one
percentum, and that the government so received them from him. And
the judges being divided on this motion as also on a motion to
quash the indictment on the ground that the notes set forth in the
indictment were not promissory notes within the act of Congress,
the following points were certified for the decision of this
Court.
1. Are the Treasury notes issued by authority of the Act of
Congress passed on 12 October in the year 1838 promissory notes
within the meaning of the act of Congress approved on 3 March,
1825, under which the prisoner is indicted, and is there a
sufficient averment in the indictment in this cause of the stealing
and receiving such Treasury notes.
2. Is the letter "M," which appears upon the face of the note
offered as evidence, a material part of the description of the said
note?
3. Would it be proper to receive parol evidence for the purpose
of explaining the meaning of the said letter "M" and proving the
practice and usage of the Treasury Department and officers of the
government and others, lawful receivers of similar Treasury notes,
in order to show thereby the meaning intended to be attached and
actually attached to the said letter "M" by the Treasury Department
and others, and that by such meaning the said Treasury note bears
one mill percentum interest, and not one percentum interest.
As to the first point, we entertain no doubt that the notes
described in the indictment are "promissory notes" within the act
of Congress under which the indictment is framed. They contain a
promise to pay money by the United States, and they are
substantially and technically embraced by the law. And we think the
averment, though not very technically expressed in the
indictment,
Page 38 U. S. 179
that the defendant received the notes knowing them to have been
stolen from the mail is sufficient.
We think also that the letter "M", which appears on the face of
the note, is a material part of it. It limits the interest on the
note to one mill percentum, instead of one percentum as stated in
the indictment.
The indictment does not profess to set out an exact recital of
the note, but merely to give such a description of it as to make it
evidence in the case. And this is all that the law requires. But
the description, as far as it goes, must be accurate, so as to
identify the note. Any substantial variance between the note
described, and the one offered in evidence, must be fatal to the
prosecution. In this respect the rules of pleading are the same in
criminal as in civil proceedings.
If the note in question had been given by an individual, and an
action of assumpsit had been brought on it, the declaration must
have described it accurately, and by a proper averment shown the
meaning and effect of the letter "M", on the face of the note. And
so where a note is given payable in foreign coin, the value of such
coin, in current money, must be averred, and under such averment,
evidence of the value may be received.
This Treasury note might perhaps have been described in the
indictment with sufficient certainty without stating the rate of
interest which it bears, but if this part of the note be described,
it must be done accurately. And this might have been done by
copying the words of the note, including the letter "M". It would
not have been improper, though not essential, after the recital to
aver the meaning and effect of the letter "M"; and then proof would
be required to sustain the averment.
We think, under the circumstances of the case, that parol proof
may be received to show the meaning and effect of the letter "M",
as inserted in the body of the note, and if such evidence shall
establish a substantial variance between the note described in the
indictment and the one offered in evidence, it must be fatal to the
prosecution, whether such evidence be submitted to the decision of
the court or to the jury, under the instruction of the court.
This cause came on to be heard on the transcript of the record
from the circuit court of the United States for the Eastern
District of Virginia, and on the points and questions on which the
judges of the said circuit court were opposed in opinion, and which
were certified to this Court for its opinion, agreeably to the act
of Congress in such case made and provided, and was argued by
counsel. On consideration whereof, it is the opinion of this Court
1st, that the Treasury notes issued by authority of the act of
Congress, passed on the twelfth day of October in the year 1838,
are promissory notes, within the meaning of the act of Congress
approved the third day of March, 1825, under which the prisoner is
indicted, and that there is a sufficient averment in the indictment
in this
Page 38 U. S. 180
cause of the stealing and receiving such Treasury notes; 2d,
that the letter "M," which appears upon the face of the note
offered as evidence, is a material part of the description of said
note. And 3d, that it would be proper to receive parol evidence for
the purpose of explaining the meaning of the said letter "M", and
proving the practice and usage of the Treasury Department and
officers of the government and others, lawful receivers of similar
Treasury notes, in order to show thereby the meaning intended to be
attached and actually attached to the said letter "M" by the
Treasury Department and others, and that by such meaning the said
Treasury note bears one mill percentum interest, and note one
percentum interest.
