Maxwell, District Attorney, counsel for the people. Messrs. Price and M'Ewen, counsel for the prisoner. Noah Pomeroy was tried upon an indictment containing four counts, for having in his possession certain forged and counterfeit bank bills, with intent to pass the same, and also for having uttered them, knowing them to be forged. It came out in testimony, that the police of our city despatched two of their officers, Messrs. Hays, senior, and Homans, in pursuit of the prisoner on the evening of the 13th of October. They found him in Harmanstreet; and as they seized him, they distinctly saw him, by the light of the moon, drop from his hand a paper, which he attempted to tread upon, containing four counterfeit bank bills of the Eagle Bank in New Haven, which were set forth in the indictment. No evidence was offered of any attempt on the part of the prisoner to utter the bills in question, and the counts which related to his having them in possession, with intent to pass, constituted the only issue; and for proof of this the District Attorney rested upon the testimony of Messrs. Hays and Homans.

Messrs. Price and M'Ewen, of counsel for the prisoner, took an exception to the indictment, on the ground. that the bills therein set forth were charged to be forged and counterfeit, with intent to defraud the President, Directors and Company of the Eagle Bank. The bills

Nov. 1823.

V.

Pomeroy.

N'W YORK, produced in evidence were imitations of the bills issued in the name of "the President, Directors and Company The People of the Eagle Bank in the city of New Haven." A Bank is a body politic, and can be known only by its corporate name; any thing more or less than its baptismal desription contained in its charter is a defect which no testimony nor averment can supply. The words, "in the city of New Haven," being therefore a part of its corporate name, were essential in the indictment, and their omission was fatal: There might be other banks in the United States by the name of the Eagle Bank, and if this were the only necessary description, the indictment might aim at one set of bills, and the testimony might support it by proof of another. To lay the act complained of with an intent to defraud persons unknown, would be good; but to lay it with intent to defraud a body corporate, designated by a name unknown to the statute which created it, was a course unauthorized either by principle or precedent.

Mr. Maxwell, District Attorney, contended, that if the indictment was laid with a certainty which in legal parlance is denominated "certainty to a common intent," it was sufficient. The gravamen of the case was not the rights acquired by the bank under their charter, but the fraud practised upon the public by the prisoner at the bar. If the rights or duties of the bank were specifically at issue, the objection might be good, but here the great point was whether the individual named had been guilty of the crime which it was the intention of the statute to guard against and punish.

The Court reserved the question as raised by the counsel; but the jury, on the facts disclosed in evidence, returned a verdict of GUILTY.

The defendant was tried at the last term, on an indictment alleging that he obtained from one Hammelin three tubs of butter by a fraudulent pretence. The pretence Where the deset forth in the indictment was as follows, to wit, "that fendant falsely stated that he was a grocer, residing at No. 77 Chatham street." he was a groThis was negatived by the following averment: "that he, cer, and that he resided at the said James Dalton, was not at the time mentioned a a particular grocer, residing at No. 77 Chatham street, nor at any other place, held a place in the city of New York."

false pretence under the stat

mere naked

The ques

On the trial, Hammelin testified, that on the 29th day ute, and not a of October last, Dalton, with whom he had previously falschood. no acquaintance, came on board a vessel which he com- tion whether a manded, and which was then lying at some wharf in the pretence was city, and purchased a tub of butter, stating that he was as might have a grocer, residing or doing business at No. 77 Chatham been guarded against by orstreet. He did not pay for it at that time, but said he dinary pruwould do so when he returned the tub. Hammelin tes

such an one

a

is dence, question exclusively for - the jury; except where it is manifestly such an one as could not, by possibility, deceive a man of common sagacity; in which latter case (semb) the court will arrest the judg

ment.

The false pretence set forth in the indictment must be the sole inducement to the parting with the goods. If it appears that any act or declaration of the prisoner, forming part of the res gesla, and not set out in the indictment, formed part of the inducement, the prisoner is entitled to an acquittal. Mere accidental circumstances, however, not forming part of the res gesta, need not be set forth.

VOL. II.

21

Dec. 1823.

V.

Dalton.

N'W YORK, tified farther, that it was customary amongst masters of vessels to trust grocers residing in the city, and that he The People accordingly, without hesitation, permitted Dalton to take away the butter, relying on his promise for payment. Faithful to this promise, Dalton returned the tub, paid for the butter, and stated, that as it was good he would take three tubs more. Hammelin assented to this; but the prisoner did not again make his appearance. A few days afterwards Hammelin discovered that his whole story was false, and that no such person resided at 77 Chatham street. The witness farther stated that he should not have trusted Dalton had it not been for his representation as to his place of residence and his occupation.

Francis A. Blake, of counsel for the prisoner, inquired of the witness whether he had not been prepossessed in favor of the prisoner by his apparent honesty in fulfilling the promise he had made on his first purchase. The witness answered in the affirmative, and admitted, in reply to other questions to the same point, that he should not have parted with the butter last purchased, had not Dalton bought and paid for the former quantity. This, he said, he regarded as a cunning device.

Blake, for the prisoner.-There can be no dispute with regard to the facts in this case. I have not the slightest disposition to vindicate the moral honesty of the prisoner, but I do believe he is in point of law entitled to an acquittal. The questions we shall raise, however, will be addressed entirely to the consideration of the

court.

Here his honor the Recorder observed, that the court at present entertained an impression that the prisoner, on the whole case, should be convicted; but that, as some

Dec. 1823.

confusion existed amongst the authorities, it would per- N'W YORK, haps be advisable, in order to settle the law, to suffer a verdict to pass by consent against the defendant, reserving The People the case for the opinion of the court.

Blake stated that he should not object to the course proposed, provided it were fairly understood that the prisoner's counsel should not, owing to consent, be confined after verdict to a mere motion in arrest of judgment founded on the record; but that the whole law arising on the evidence should be open for discussion on the argument of that motion. This was acceded to; and at the present term a motion was made in arrest of judgment, or for a new trial in the alternative.

F. A. Blake, for the prisoner. It will not be contended, I presume, by the counsel for the people, that this case would have afforded good ground for an indictment either at common law or under the statute, 33 Hen. VIII. c. 1. Dismissing at once, then, the numerous cases which were adjudicated prior to the enactment of the statute, 30 Geo. II. c. 24, let us see how far this prosecution can be sustained under that statute and under our own.

By the 18th sec. of the statute (1 N. R. L. 410) it is enacted, that "every person who shall hereafter be convicted of knowingly and designedly, by false pretence, obtaining from any other person any money, goods, or chattels, or other effects, with intent to cheat or defraud any person, &c., shall be punished by fine and imprisonment, or either," &c.

I contend that the indictment, in the present instance; does not set forth a sufficient false pretence within the statute, on two grounds: first, the charge against Dalton consists in the uttering of a mere naked falsehood, whereby he obtained the goods from Hammelin on the faith of

V.

Dalton.