#### State v. Patillo & Saunders.

From Lincoln.

Promissory notes are not public tokens of themselves; bank notes are ; an indictment therefore for a client at common law, by passing1 certain “promissory notes” us and for bank notes, without an averment that they resembled bank notes, cannot he sustained.

This was an indictment charging that the Defendants, designing and intending to defraud one *Barnabas West*of a mare of the value of twenty dollars, “ falsely, fraudulently, and unlawfully, did conspire, combine, confederate and agree among and between themselves, to obtain and get into their hands and possession, of and from the-said *Barnabas West,*the mare aforesaid, under a false colour and pretence of paying to him the said *Barnabas West,*then and there, forty-five dollars of good find lawful current bank notesand that the Defendant *Patilla*in pursuance of the conspiracy, afterwards did “ falsely, fraudulently, unlawfully, and deceitfully, pass to the said *Barnabas West,*one promissory note of twenty dollars, two promissory notes of ten dollars, and one promissory note of five dollars, purporting each to have been made and signed by one .7.F. *Randolph;*ami purporting *349to be made payable to the bearer and that *Fatillo*and *Saunders*in pursuance of the conspiracy, did “ fraudu-lentiy, and falsely pretend and affirm, to him the said *Barnabas West,”*that the said promissory notes were good current bank notes; and that the Defendants “by the false pretences aforesaid,” fraudulently obtained possession of the mare; whereas, in truth and in fact, the notes were not good current bank notes, but on the contrary, were' not worth one cent. The indictment concluded at common law. The jury found the Defendants not guilty of a conspiracy ; but that the Defendant *Fatillo*was guilty of a deceit, in manner and form as charged in the bill of indictment.

The Defendant *Palillo*moved in arrest of judgment, because the indictment did not charge a deceit; and because the bills mentioned in the indictment did not constitute such a *false token,*as would sustain an indictment for a deceit at common law.

The Court, Daniel Judge, overruled both objections, and passed senlence on the Defendant, whfereuponhe appealed to this Court.

Henderson, Judge,

delivered 1 he opinion ofthe Court as follows:

Bank notes are public tokens, as much so as weights and measures, or the alnagcr’s seal; it is not necessary that they should have a common law existence, to make the obtaining property, by means of mere counterfeits at least, at common law, any more than if is, that a chattel should have had a common law existence, to make it the object, of trespass or larceny. It is sufficient that they have, no matter when, invented or discovered the qualities of a public token, *i. e.*calculated to inspire *public confidence;*in practice, they represent the coin of our country, and pass currently as money. Had this indictment therefore, charged that the notes passed to the prosecutor, bore the likeness and similitude of our common bank notes, and that the Defendant knew them *350to be *worthless;*I have not a doubt but that the conviction could have been sustained, and it appears fx’otn the evidence, that such was the case; but it is to the indictment we are j00¡Í9 to see what the Defendant lias done: in that, it is stated that the notes passed by the Defendant to the prosecutor, purported to be signed by one *Randolph,*and to be payable to bearer, and that they were worthless, without any averment or charge that they had any resemblance to bank notes. They are discovered therefore, to be nothing more than common promissory notes, made by an individual promising to pay money to the bearer. We cannot view such notes as public *tokens;*these are *not*the kind of notes which pass with us as money. I repeat it, that had it been averred, and had the Jury found, that they bore the resemblance of our common bank notes, and that the Defendant knew that they were w'orthless, the offence would have been complete at common law. Whether it comes within our statute, it is not necessary to decide, the indictment is not framed upon it.

Judgment arrested.