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ever. Whoever shall violate any provision of this section shall be fined not more than one hundred dollars, or imprisoned not more than six months, or both."

The new section becomes an offense wherein the penalties are recovered by the public prosecutor through indictment or information. Under the old statute, the offender was liable to a penalty of one hundred dollars, recoverable on the suit of the informer, one-half of which went to the informer. Under the authority of United States vs. Laescki, 29 Federal, 699, the penalty provided by the old section could only be recovered by a qui tam action brought by an informer, and could not be recovered by indictment at the instance of the Government.

This section is intended alone for the purpose of protecting national bank notes, and does not, by construction or otherwise, relate to the protection of any other government security or obligation. The statute really contains two offenses: the one against making any token, advertisement, circular, etc., in the likeness or similitude of any circulating note or other obligation; and the other is directed against the placing of any writing, printing notice, or any other advertisement upon one of the circulating notes or bills of the national bank currency. "Advertisement" to be read into entire statute, Kaye vs. U. S., 177 Federal, page 147.

§ 89. Imitating United States Securities or Printing Business Cards on Them.-Closely akin to the section above discussed is new Section 177, which reads as follows:

"It shall not be lawful to design, engrave, print, or in any manner make or execute, or to utter, issue, distribute, circulate, or use any business or professional card, notice, placard, circular, hand-bill, or advertisement, in the likeness or similitude of any bond, certificate of indebtedness, certificate of deposit, coupon, United States note, or other obligation or security of the United States which has been or may be issued under or authorized by any Act of Congress heretofore passed or which may hereafter be passed; or to write, print, or otherwise impress upon any such instrument, obligation, or security, any business or professional card, notice, or advertisement, or any notice of advertisement of any matter or thing whatever. Whoever shall violate any provision of this section shall be fined not more than five hundred dollars."

This section takes the place of old Section 3708, and is more severe in penalty. The penalty of the old section was not recoverable except upon the suit of an informer, and the authority of the United States vs. Laescki, 29 Federal, 699, governed. The new section authorizes prosecution by information or indictment, and by the government, instead of waiting for an informer to move. This statute, like the preceding, protects from defacement securities, moneys, notes, and other obligations of the United States, and also prevents the making, for advertising purposes, of any card or other circular in likeness or similitude to any such government security or obligation.

$ 90. Notes of Less Than One Dollar Not to Be Issued.-Section 3583 of the Revised Statutes of the United States, that has been the law since 1878, has simply been reenacted in Section 178 of the new Code, which went into effect January 1, 1910. This section reads as follows:

"No person shall make, issue, circulate, or pay out any note, check, memorandum, token, or other obligation for a less sum than one dollar, intended to circulate as money, or to be received or used in lieu of lawful money of the United States; and every person so offending shall be fined not more than five hundred dollars, or imprisoned not more than six months, or both."

The old section simply had the additional words, "at the discretion of the Court." These words were left off of the new section, which, however, does not alter the punishment, because the same is in the discretion of the Court under the new section, and he may assess either or both, as he pleases.

There seems to be no doubt, so far as the decisions are concerned, that a personal check drawn upon a bank in the settlement of an obligation, and not to be circulated as money is entirely lawful, and is not interfered with by the above section. So early as 1878 the Supreme Court of the United States, in the case of the United States against Van Auken, 96 U. S., page 366, determined that the section was intended to prevent the issuance of tokens which were to circulate as money. That decision has since been followed, directly and persuasively, in Hollister vs. Merchant Institute, 111 U. S., 63; United States vs. White, 19 Federal, 724; in re

Aldrich, 16 Federal, 370; United States vs. Rousopulous, 95 Federal, 978; Zion Institute, etc., vs. Hollister, 3 Utah, 301; Martin Lumber Company vs. Johnson, 70 Ark., 219; 66 S. W., 925.

Of course, anything I have said here does not mean that individuals or business concerns should issue, for the payment of help, any sort of a token that the employees could not immediately take to a bank and receive the cash thereon. The statute is simply for the purpose of confining the power to issue money in the Constitutional channel, to wit, the hands of Congress, and not to individuals, or firms, or con

cerns.

§ 91. Counterfeiting Gold or Silver Coins or Bars.Without substantial alteration, old Section 5457 and the Amendment, as contained in the First Supplement, 128, becomes Section 163 of the new Code, in the following words:

"Whoever shall falsely make, forge, or counterfeit, or cause or procure to be falsely made, forged, or counterfeited, or shall willingly aid or assist in falsely making, forging, or counterfeiting, any coin or bars in resemblance or similitude of the gold or silver coins or bars which have been, or hereafter may be, coined or stamped at the mints and assay offices of the United States, or in resemblance or similitude of any foreign gold or silver coin, which by law is, or hereafter may be, current in the United States, or are in actual use and circulation as money within the United States; or whoever shall pass, utter, publish, or sell, or attempt to pass, utter, publish, or sell, or bring into any foreign place, knowing the same to be false, forged, or counterfeit, with intent to defraud any body politic or corporate, or any person or persons whomsoever, or shall have in his possession any such false, forged, or counterfeited coin or bars, knowing the same to be false, forged, or counterfeited, with intent to defraud any body politic or corporate, or any person or persons whomsoever, shall be fined not more than five thousand dollars and imprisoned not more than ten years.

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The same care in the drafting of indictments, in the alleging of the fraudulent intent, is necessary, as in prosecutions for passing other forged instruments. When the indictment is for forging or making, the allegation of knowledge is unnecessary, because the law presumes that one who makes has knowledge of its falseness. U. S. vs. Otney, 31 Federal,

68; U. S. vs. Bicksler, 1 Mackey, 341; U. S. vs. Peters, 2 Abb. (U. S.), 494; U. S. vs. Russell, 22 Federal, 390. When, however, the charge is for passing, knowledge must be alleged and shown. Of course, such knowledge may be shown by either direct or circumstantial evidence, but there must be something from which the jury can conclude, beyond a reasonable doubt, that the person passing had knowledge that the coin was spurious; otherwise, the act is entirely innocent.

§ 92. Resemblance or Similitude.-The same difficulties have been encountered and overcome by the Courts under the coin statutes as were discussed under Sections 148 and 149, supra. A coin or bar would not be called counterfeit, within the meaning of a criminal statute, unless there appeared to be some resemblance or similitude and an effort to make such resemblance and similitude. It would seem to be the better public policy to accept the test prescribed in United States vs. Hargrave, 26 Federal Cases No. 15306, where it was said that it was not a question whether the spurious coin would deceive a person of ordinary skill and caution, but whether it was capable and designed to be used for deceiving the incautious and unskillful, to test which seems to be more broadly determined in the following words, to wit: "If the spurious article has not a resemblance strong enough to deceive persons exercising ordinary caution, then the passing is not a crime," as cited in and supported by Second Volume Federal Statutes Annotated, page 311; United States vs. Aylward, 24 Federal Cases No. 14484. A very fair test is that prescribed in United States vs. Hopkins, 26 Federal, 443, where the Court said:

"It is not necessary that the resemblance should be exact in all respects. The resemblance is sufficient if the coins are so far alike that the counterfeit coin is calculated to deceive a person exercising ordinary caution and observation in the usual transaction of business, though the counterfeit would not deceive a person who was expert, or has particular experience in such matters."

See also U. S. vs. Abrams, 18 Federal, 823; U. S. vs. Russell, 22 Federal, 390. In United States vs. Lissner, 12 Federal, 840, the Court held that the removal of an appreciable amount of the silver from a coin, which was replaced with an inferior metal, amounted to counterfeiting.

In United States vs. Owens, 37 Federal, 112, District Judge Hammond held that in a prosecution under a general statute of the sort under discussion, it was not essential for the indictment to aver that the alleged counterfeits were in the likeness and similitude of genuine notes (coins) authorized by the act of Congress under which they purported to have been issued. Such an allegation may be necessary under necessary under a special statute, but in providing a general law for forgery, such specific allegation is unnecessary. The words "false, forged, and counterfeited obligation of the United States" are sufficient to imply that the alleged counterfeit purports to be a genuine obligation of the United States, and are a sufficient averment that there is, or was, outstanding, authorized by law, genuine obligations of the sort the alleged imitation was intended to be a forgery or counterfeit.

An indictment under this section must aver the intention to defraud, but it need not specify the person, if, as a matter of fact, the grand jury does not know in particular, and the indictment may, therefore, allege that the forging and having in possession was for the purpose of defrauding persons to the grand jurors unknown, if such be the facts. Of course, in a count for passing or uttering, the indictment should allege the intent to defraud the person upon whom the coin was passed. Whether for having in possession or for passing, there must be, as above stated, an allegation of knowledge with reference to its vice. U. S. vs. Bejandio, 1 Woods, 294.

$ 92a. Resemblance and Similitude, Continued.An unsigned national bank note contains the elements of similitude and resemblance required by the statute. Wiggins vs. U. S., 214 Federal, 970. Similitude and resemblance is a jury question and must be submitted by the Court to the jury. U. S. vs. Weber, 210 Federal, 973. See Sections 78 and 78a. The meaning of similitude is that the counterfeit must resemble the genuine. Whether it does is a question of fact for the jury, but the Court will instruct them that the likeness need not be perfect. The rule is sometimes stated to be that it will suffice if the counterfeit looks so much like the original as to be capable of deceiving a person using ordinary caution. 2nd Vol. Bishop's New Criminal

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