Statement of the Case.

could not agree as to the other counts; and, in the presence of the jury, the prosecuting attorney proposes to enter a nolle prosequi as to those counts; and, the jury having retired, the court permits this to be done; and the jury, being then instructed to pass only upon the remaining counts, return a verdict of guilty as charged in the indictment; all this, however irregular, does not amount to a deprivation of the liberty of the defendant without due process of law.

THE court, in delivering its opinion, stated the case as follows:

The Supreme Court of North Carolina having affirmed a judgment of the Superior Court of Wake County, in that State, whereby, in conformity with the verdict of a jury, the plaintiffs in error were sentenced to hard labor, the present writ of error was sued out upon the ground that the judgment of affirmance sustains an authority, exercised under the State, which was drawn in question as being repugnant to the laws of the United States. The specific contention of the defendants is, that the offence of which they were convicted was cognizable only in the courts of the United States. If this position be well taken, the judgment must be reversed; otherwise, affirmed.

with intent

By the Code of North Carolina it is made an offence against that State "if any person, of his own head and imagination, or by false conspiracy or fraud with others, shall wittingly and falsely forge and make, or shall cause or wittingly assent to be forged or made, or shall show forth in evidence knowing the same to be forged, any bond, writing obligatory, bill of exchange, promissory note, indorsement or assignment thereof; to defraud any person or corporation." North Carolina Code, 1883, § 1029. It is provided by the same code that "in any case, where an intent to defraud is required to constitute the offence of forgery or any other offence whatever, it shall be sufficient to allege in the indictment an intent to defraud, without naming therein the particular person or body corporate intended to be defrauded; and, on the trial of such indictment, it shall be sufficient, and shall not be deemed a variance, if there appear to be an intent to defraud the United States, or any State, county,

Statement of the Case.

city, town, or parish, or body corporate, or any public officer, in his official capacity, or any copartnership or member thereof, or any particular person." Ib. § 1191.

The first count of the indictment against the defendants charged that they "unlawfully and feloniously, of their own head and imagination, did wittingly and falsely make, forge and counterfeit," and "did wittingly assent to the falsely making, forging and counterfeiting, a certain promissory note for the payment of money; which said forged promissory note is of the tenor following, that is to say:

""$6250.00. March 8th, 1888. "Four months after date, we, D. H. Graves, principal, and W. H. Sanders, the other subscribers, sureties, promise to pay the State National Bank of Raleigh, North Carolina, or order, sixty-two hundred and fifty dollars, negotiable and payable at the State National Bank of Raleigh, N. C., with interest at the rate of eight per cent per annum after maturity until paid, for value received, being for money borrowed, the said sureties hereby agreeing to continue and remain bound for payment of this note and interest, notwithstanding any extension of time granted from time to time to the principal debtor, waiving all notice of such extension of time from either payer or payee; and I do hereby appoint Sam. C. White, cashier, my true and lawful attorney to sell any or all collateral he may have in his hands to pay this claim if I should fail to do so when said claim falls due, after giving me ten days' notice of his intention to sell the same, and pay any surplus that may remain to me.

"And upon the back of which said false, forged and counterfeited promissory note is stamped and written D. D. D. H. Graves. $6250. July 8,' with intent to defraud, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the State."

The second count relates to a note of the same description, and charges the defendants with having unlawfully, feloniously

Statement of the Case.

and wittingly, uttered and published it as true, "with intent to defraud," knowing, at the time, the same to be false, forged and counterfeited.

The third count charged that the defendants, of their own head and imagination, falsely, unlawfully and feloniously made, forged and counterfeited, and caused and procured to be made, forged and counterfeited, and wittingly aided and assented to the false making, forging and counterfeiting a note of like description, with "intent to fraud . . . the State National Bank, a corporation duly created and existing under the laws of the United States, contrary," etc.

The fourth count charged that the defendants, devising and intending to defraud the State National Bank of Raleigh, North Carolina, a corporation existing under the laws of the United States, unlawfully and falsely combined and conspired together to make, forge, counterfeit, and by such conspiracy and fraud feloniously, falsely and wittingly did forge and make, and caused and assented to be forged and made, the above described note, "with intent to defraud, contrary to the form of the statute," etc.

The defendants filed a joint plea in abatement, contesting the jurisdiction of the state court upon the following grounds : "That at the time of the alleged conspiracy and conspiracies, forgery and forgeries, uttering and utterings, in said indictment specified, there was a national banking association, duly organized and acting under the laws of the United States, in Raleigh, Wake County, North Carolina, known as the State National Bank of Raleigh, North Carolina, having its place of business and doing its said business in the said city of Raleigh, in the county of Wake and State of North Carolina, and within the jurisdiction of the Circuit Court of the United States for the Eastern District of North Carolina;

"That the said Charles E. Cross was then and there an officer of said bank, to wit, its president, and the said Samuel C. White was then and there an officer of said bank, to wit, its cashier;

"That said alleged conspiracy and conspiracies, forgery and forgeries, uttering and utterings were made, entered into, com

Citations for Plaintiffs in Error.

mitted and done by the said Charles E. Cross, and afterwards assented to by the said Samuel C. White, for the purpose of supporting, sustaining and making a certain false entry and entries, in the books of said bank, and that the said false entry and entries were by the said Samuel C. White, cashier as aforesaid, acting as cashier, actually made in and upon the books of the said bank, the said Charles E. Cross being then and there aiding and abetting, for the purpose of deceiving, and with intent to deceive, the agent of the United States; to wit: the bank examiner of the United States, duly appointed to examine into the affairs of the said association, to wit, the State National Bank of Raleigh, North Carolina;

"That the said note, in said indictment specified, was never uttered or published in any way, nor to any other person or corporation, nor was there any intent or attempt so to do;

"That the said note, in the said indictment specified, was entered upon and in the books of the State National Bank aforesaid as the property of the said National Bank of Raleigh, North Carolina, and placed among the assets by the said Charles E. Cross and Samuel C. White as aforesaid, for the purpose and with the intent aforesaid.

"The above facts the said Charles E. Cross and Samuel C. White are ready to verify.

"Wherefore they pray judgment if the said court now here will or ought to take cognizance of this indictment here preferred against them, and that by the court here they may be dismissed and discharged," etc.

This plea having been disallowed, the defendants severally pleaded not guilty. After the cause was finally submitted to the jury, the attorney for the State, with the permission of the court, entered a nolle prosequi as to the third and fourth counts. The jury thereupon returned a verdict of guilty as charged in the indictment, and judgment thereon was accordingly entered.

Mr. W. R. Henry, for plaintiffs in error, cited: Moore v. Illinois, 14 How. 13; Houston v. Moore, 5 Wheat. 1; Commonwealth v. Tenney, 97 Mass. 50; Commonwealth v. Felton,

Opinion of the Court.

101 Mass. 204; Commonwealth v. Fuller, 8 Met. (Mass.) 313; S. C. 41 Am. Dec. 509; State v. Smith, 43 Vermont, 324 ; Drake v. State, 60 Alabama, 42; State v. Cooper, 13 N. J. Law (1 J. S. Green), 361; S. C. 25 Am. Dec. 490; State v. Chaffin, 2 Swan (Tenn.) 493; State v. Shelley, 11 Lea, 594; State v. Ingles, 2 Hayward (N. C.) 148; State v. Lewis, 2 Hawks, 98; S. C. 11 Am. Dec. 741; United States v. Harmison, 3 Sawyer, 556; State v. Pike, 15 New Hampshire, 83; United States v. Comerford, 25 Fed. Rep. 902; Sturges v. Crowninshield, 4 Wheat. 122; Prigg v. Pennsylvania, 16 Pet. 539; United States v. Wilcox, 4 Blatchford, 385; The William King, 2 Wheat. 148; Lee v. Lee, 8 Pet. 44; Delafield v. Illinois, 2 Hill, 159; People v. Lynch, 11 Johns. 549; United States v. Lathrop, 17 Johns. 4; In re Campen, 2 Ben. 419.

Mr. Theodore F. Davidson, Attorney General of the State of North Carolina, for defendant in error, cited: Fox v. Ohio, 5 How. 410; United States v. Lawrence, 13 Blatchford, 211; Territory v. Coleman, 1 Oregon, 191; Coleman v. Tennessee, 97 U. 8. 509; Ex parte Houghton, 7 Fed. Rep. 657; Moore v. Illinois, 14 How. 13; Commonwealth v. Bakeman, 105 Mass. 53; United States v. Barney, 5 Blatchford, 294; Virginia v. Rives, 100 U. S. 313; Arrowsmith v. Harmoning, 118 U. S. 194; State v. Bowers, 94 North Carolina, 910; State v. McNeill, 93 North Carolina, 552; State v. Thompson, 95 North Carolina, 596; State v. Taylor, 84 North Carolina, 773; State v. Carland, 90 North Carolina, 668.

MR. JUSTICE HARLAN, delivering the opinion of the court, after stating the case, continued:

The plea in abatement was evidently drawn with reference to § 5209 of the Revised Statutes, Title, National Banks. That section provides, among other things, that "every president, director, cashier, teller, clerk or agent of any association . . who makes any false entry in any book, report, or statement of the association, with intent, in either case, to injure or defraud the association or any other company, body politic or corporate, or any individual person, or to deceive any officer