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weight required by law, is a Spanish coin genuine and milled, and passes current as a dollar."

Thus it will be seen that the pistareen passes for twenty cents, or onefifth of a dollar, although it purports to be a quarter of a dollar or twenty-five cents; so that its current, as well as its real value, is uncertain. And whether it is to be considered as a coin made current by law, is only to be ascertained by a reference to the laws of Congress on this subject.

By the act of 1792,1 establishing a mint and regulating the coin of the United States, the several denominations of silver coin are declared to be dollars, half dollars, quarters dollars, dimes, and half dimes, and the value of each is established. The Spanish milled dollar, as the same as was then in current use, was assumed as the standard. And the subdivision or parts of the dollar, according to the above denominations are adopted as the most convenient division of the dollar. And in the following year, 1793,2 an act was passed regulating foreign coin, by which, among other things, it is declared that foreign silver coin shall pass current as money within the United States, and be a legal tender for the payment of all debts and demands, at the rates therein fixed. The Spanish milled dollar at the rate of one hundred cents for each dollar, the actual weight whereof shall not be less than seventeen pennyweights and seven grains; and in proportion for the parts of a dollar. The dollar and parts of the dollar are here made current by law. What is here meant by parts of a dollar? The parts of a dollar having been recently fixed and defined in our domestic coin, it is no more than reasonable to conclude that the parts of a dollar here adopted in relation to foreign coin, are referable to the same denomination in the subdivi sion as established in the domestic coin. The value of the foreign dollar is fixed in cents, at one hundred cents, according to the denomination at the mint; and the same rule would apply to the parts of a dollar when valued in cents; and there is no denomination of silver valued at twenty cents, the value of the pistareen found by the jury, By this act, no foreign coin issued after the first day of January, 1792, shall be a tender, until samples thereof shall have been found, by assay at the mint of the United States, to be comformable to the respective standards required. And it is also declared by this act, that at the expiration of three years next ensuing the time when the coinage of gold and silver agreeably to the act establishing the mint, shall commence at the mint of the United States, all foreign gold coin and all foreign silver coin, except Spanish milled dollars, and parts of such dollars, shall cease to be a legal tender. And it would be incongruous to

11 Stats. at Large. 246. (2 Laws U. S. 263, sec. 9.)

2 2 Laws U. S. 328.

2 DEFENCES.

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suppose that, if these foreign coins, if not a legal tender would be considered as made current by law. And it is also provided by this act, in order to fix the time when foreign coin should cease to be a tender, that the President shall make proclamation of the time when such coinage shall commence. The President, accordingly, on the 22d of July, 1797, issued his proclamation, announcing the time when the coinage commenced at the mint, and declaring that all foreign silver, except Spanish milled dollars and parts of such dollars, will cease to pass current as money on the 15th of October then next.

That the policy of the government was to withdraw from circulation, or at least not to recognize as a coin made current by law, foreign coin, as soon as our own coinage was sufficient to answer the metallic circulation, is fairly to be inferred from the provision, that all foreign gold and silver coin (except Spanish milled dollars and parts of such dollars) which shall be received in payment for moneys due the United States, after coinage shall begin at the mint, shall, previous to their being issued in circulation, be coined anew, in conformity to the act establishing the mint. And the policy of the government being to establish a currency under our own coinage, and according to our own denominations, it is reasonable to conclude that the parts of a Spanish milled dollar mentioned in this law, and in all the legislation on the subject when the same language is used, is in reference to the parts of a dollar according to the decision in the act of 1792. The act of 1793 was in part repealed in 1806,1 and another law regulating the currency of foreign coins passed, and directing at what rate such foreign coin shall pass current, retaining the same standard of weight, seventeen pennnyweights and seven grains, as the Spanish milled dollar, and in proportion for the parts of a dollar; and directing the secretary of the treasury to cause assays of the foreign gold and silver coin to be had at the mint, for the purpose of enabling Congress to make such alteration in the coin made current by that act, as may become necessary, from the real standard of such foreign coin; all looking to the same policy with respect to the establishment of our own coinage, and in reference to the denominations in the law of 1792. By the act of 1806,2 for the punishment of counterfeiting the current coin of the United States, it is made felony to counterfeit any gold or silver coins which by law now are, or hereafter shall be made current, or be in actual use and circulation as money within the United States; clearly embracing money in circulation which was not made current by law; and in this class or description may be embraced the small silver foreign coin under twenty-five cents, in circulation here. But by the act of 1825,3 under

1 2 Stats. at Large, 374 (4 Laws U. S. 29). 2 Ib. 404 (4 Laws U. S. 67.)

37 Laws U. S. 400, sec. 20.

which the prisoner is indicted, this class of currency is omitted, and the offense is confined to counterfeiting such foreign gold or silver coin which by law then was, or thereafter might be made, current in the United States. The jury, by their special verdict, find, that the head pistareen has for many years past been in common circulation in the country. The counterfeiting such coin, under the act of 1806, would be felony; but not under the act of 1825, unless it is a coin made current by law.

From this view of the several acts of Congress, there is at least reasonable grounds to conclude, that when the terms parts of a dollar are used in these laws, it is in reference to the division of a dollar, as established at the mint, and there being no such part as a twenty cent piece, or fifth of a dollar, we think the pistareen is not a coin made current by law. But if this is a doubtful construction of the act, it ought to be adopted in a case so highly penal as the present.

We are accordingly of opinion that the questions certified to this court must be answered in the negative.

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In the United States Circuit Court, District of Ohio, 1851.

To Make Spurious Coin to use in magical performances and not to circulate as money is not counterfeiting.

LEAVITT, J. The defendant is charged with the offense of making certain counterfeit coins of the United States. The law on which the indictment is framed provides a penalty against any one who shall falsely make, forge or counterfeit, any silver coin in the resemblance and similitude of any silver coin of the United States, or any foreign silver coin, made current by law.

It is not necessary to detain the jury by relating the evidence at length. The material facts are, briefly, as follows: Sometime in the year 1850, some of the police officers of the city of Cincinnati visited

the rooms occupied by the defendant in that city. In one room there was a chest, in which were found, at the bottom, and interspersed with the sheets and articles of clothing which it contained, a number of counterfeit coins, consisting of American half dollars and dimes. Some moulds made of plaster, intended for the manufacture of coins, were also found in the chest, and in the room; but these were not complete, and had never been used. The witnesses also discovered, behind a curtain in the same room, a galvanic battery, and some other articles, apparently designed to be used by a showman. The half dollars, six or eight in number, were stuck or glued together, in the manner in which they are used by exhibitors of magical performances; and thus arranged, the mass is called the magical ball or ring. Neither the room or the chest was locked when the officers entered to make the search. The defendant, and a man whose name is Freely, were in the room when the officers entered, and during the examination. When the officers made known the object of their visit, Freely remarked, that there was no counterfeit coin there that he knew of; and when found, said the defendant had nothing to do with it. The trunk and its contents were claimed by the defendant as his property, who said, when the coins were found, that he was getting up a public exhibition, and that they were intended for use in that way. There is no proof that the defendant passed or attempted to pass, any counterfeit coin.

On the part of the defence, it is in evidence, that the defendant has lived about three years in Cincinnati, during the greater part of which time he was in the employ of Mr. Farnum, who is engaged in the manufacture of hose. It also appears that the defendant was in the habit of giving occasional public exhibitions of magical performances. Three witnesses state, that they have been present at some of the defendant's performances, in which he used the magic ball or ring, before described. One witness One witness a distingusihed professor of magic-states, that it is usual for those engaged in that business, to use counterfeit dimes or other coins, to avoid the losses to which they are liable from the use of genuine coins. Several witnesses some of whom have been well acquainted with the defendant for ten or twelve years testify to his general good character.

These being the material facts in evidence, it will be for the jury to decide, whether the charge in the indictment is sustained. To justify a verdict of guilty, the jury must be satisfied that the defendant made, or aided in making, one or more, of the counterfeit coins described in the indictment. And it may be remarked, that the guilty agency of the person charged, in the manufacture of spurious coins, may be satisfactorily made out, without positive proof of the fact. Circumstances

may be adduced, sufficient of themselves, to justify a presumption of such agency. (The possession of a quantity of false coins, upon the person, or the premises of the party implicated, warrants the inference. that he made them.) And this inference is greatly strengthened by proof, that instruments or tools, designed for the manufacture of such coins, were found in the possession of the accused person. But this presumption of guilt may be negatived by evidence showing that the false coins, though manufactured by him, were made for an innocent purpose, or a purpose not rendering the act criminal under the provisions of the statute on which the prosecution is based. It will, therefore, be a proper inquiry for the jury, if the evidence satisfies them that the defendant made the coins in question, whether there was the guilty intent to pass them as genuine. The intent with which an act is done, gives it its true legal character, and in general, is a necessary element of crime.

In this case it is insisted that if the defendant made the spurious coins, it was not for the purpose of fraudulent utterance, but to aid him in his performances as a professor of magic. If the jury shall come to the conclusion, from the evidence, that this was the defendant's purpose in making all coins, it is very clear, their verdict must be one of acquittal. The penalty of the statute on which the indictment is framed, is denounced against any person who shall falsely make or counterfeit the coin of the country. The use of the word falsely in the statute implies, that there must be a fraudulent or criminal intent in the act. And the statute contemplates no other intent, in the act of making, as necessary to constitute the crime, but that of disposing of or passing the spurious coin, as true and genuine. If made for any other purpose though that purpose is not a justifiable or defensible one in a moral aspect—the party does not incur the legal guilt contemplated by the statute.

It is true beyond all question, that the coin of the country should be scrupulously guarded by law. The social and commercial interests of any people are involved in its preservation from adulteration and forgery. And it is competent for Congress, by suitable enactments, to protect the sacredness of the metallic currency of the country, by a provision that shall punish the act of counterfeiting it, for any, even an innocent purpose. But the existing law checks, does not reach such a

case.

The jury returned a verdict of not guilty.

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