ON a certificate of division of opinion of the judges of the circuit court of the United States for the district of Pennsylvania.
The defendant was indicted in April 1833, in the circuit court for the district of Pennsylvania, for passing a counterfeit note of the denomination of ten dollars, purporting to be a note issued by the Bank of the United States, with intent to defraud the bank scienter, &c.
He interposed three several pleas to this indictment, in the second of which he avers that the note described in the indictment, &c., was heretofore given in evidence, with the facts and circumstances attending the said passing thereof, on the the trial of defendant, upon a certain former indictment found against him for passing another ten dollar counterfeit note, to sustain that indictment; and that he was thereupon acquitted, &c.
To this plea the United States demurred, and the defendant joined in demurrer; but as the opinions of the judges were opposed as to the judgment to be given thereon, the case was certified for the opinion of this court.
The case was argued by the Attorney-General for the United States. No counsel appeared for the defendant.
The Attorney-General submitted to the court the following points; and referred the court to the authorities on both sides of the question presented by them.
1. It appears by the record, that the offences for which the defendant was indicted, were not the same. Cited on this point: 2 Hale's P. Cr. 244; 4 Hawk. 316, 314; 1 Chitty's Crim. Law 453, 456; 1 Leach's Crown Law 242; 2 Leach's Crown Law 716; Rex v. Clarke, 1 Broad. and Bing. 473; 9 East 437; Van Horton v. Hawey, 2 New York City Recorder 73.
2. The acquittal upon the first indictment does not necessarily involve any decision upon the question presented by the last. Cited: 2 East 519; for the general principles, 522; Jackson v. Wood, 3 Wendell's Rep. 27; 8 Wendell's Rep. 9; Starkie on Evidence, part 2, sec. 65, 198, 202.
3. The passing of the note described in the last indictment, was not a fact embraced within the issue formed upon the former indictment; and if given in evidence on the trial of that issue, it could only have been as a collateral circumstance tending to prove the scienter in respect to the note described in the first indictment; and this does not protect the party from answering directly for the fact, in an indictment founded thereon. Starkie, part 4, 379, 380, 382.
Mr Chief Justice MARSHALL delivered the opinion of the Court.
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