wards broke up a mould used in casting counterfeit shillings; on her counterfeit money was found, but none on her husband. Talfourd, J., held that as the husband occupied the room in which the mould was found, primâ facie he must be presumed to be in possession of what the room contained; but that presumption might be rebutted, and the jury must consider all the circumstances, and see whether they satisfied them that the trade was carried on there with his sanction. If they were satisfied that the husband was in possession of the mould, they ought to acquit the wife, as she could not in law be said to have any possession separate from her husband; but if they thought that the criminality was on her part alone, and that he was entirely guiltless of any participation in her conduct, she might be convicted. If they thought she broke the mould to screen him from detection, that would not affect the case. Either husband or wife might be convicted on this evidence, but not both. As to the boy, it would be going too far to say that he was a joint possessor with either of his parents.(w) *119] *CHAPTER THE FOURTH. OF UTTERING, TENDERING, &C., COUNTERFEIT COIN. In some cases formerly the putting off counterfeit money might amount to treason as if A. counterfeited the gold or silver coin current, and by agreement before that counterfeiting B. was to take off and vent the counterfeit money, B. was an aider and abettor to such counterfeiting, and consequently a principal traitor within the law. (a) And in the case of the copper coin, B. acting a similar part was an accessory before the fact to the felony, within the statute 11 Geo. 3, c. 40 (now repealed) (b) And if B., knowing that A. had counterfeited money, put off this false money for him after the fact, without any such agreement precedent to the counterfeiting, he seems to be as a receiver of A. because he maintains him.(c) If A. counterfeit money, and B. knowing the money to be counterfeited vented the same for his own benefit, B. was neither guilty of treason, nor misprison of treason. But he might be proceeded against under the 15 Geo. 2, c. 28 (now repealed), before which statute he was only liable to be punished as for a cheat and misdemeanor. (d) Where the defendant was indicted for "unlawfully uttering and tendering in payment to T. H. ten counterfeit halfpence, knowing them to be counterfeit," and convicted on a count laying this generally, upon reference to all the judges they held it was not an indictable offence. (e) And upon the principles which have been mentioned in a former part of this work,(f) the unlawful procuring of counterfeit coin with intent to circulate it, though no act of uttering be (b) 1 East P. C. c. 4, s. 26, p. 178. (c) 1 Hale 214. (d) 1 East P. C. c. 4. s. 26, p. 179; 1 Hale 214. See precedents of indictments for a misdemeanor at common law in uttering a counterfeit half-guinea: Cro. Circ. Comp. 315 (7th edit.); Starkie 466; Chit. Crim. Law 116. See also a precedent of an indictment for a misdemeanor at common law, against a man for uttering a counterfeit sixpence, and having another found in his custody: Cro. Circ. Comp. 315 (7th edit.); 2 Chit. Crim. Law 117. The uttering of false money, knowing it to be false, is mentioned as a misdemeanor in the recital to the 15 Geo. 2, c. 28, s. 2. There is also a precedent for a misdemeanor at common law, in uttering, and causing to be uttered, guineas filed and diminished as good guineas: Cro. Circ. Comp. 317 (7th edit.), and 2 Chit. Crim. Law 116; and also a precedent for a misdemeanor at common law in selling counterfeit Dutch guilders: Cro. Circ. Comp 313 (7th edit.); 2 Chit. Crim. Law, 219, 120. (e) Cirwan's case, Oxford Sum. Ass. 1794, MS. Jud.; 1 East P. C. c. 4, s. 28, p. 182; 2 Leach 834, note (a). (f) Ante, p. 85. proved, is a misdemeanor; and the possession of counterfeit coin unaccounted for was held to be evidence of an unlawful procurement with intent to circulate.(g)1 *But the receiving, uttering, or tendering in payment counterfeit money are provided for by the late statute. Sec. I.-Of uttering, &c., Counterfeit Coin of the Realm. [*120 By the 24 & 25 Vict. c. 99, s. 9, "Whosoever shall tender, utter, or put off any false or counterfeit coin resembling or apparently intended to resemble or pass for any of the Queen's current gold or silver coin, knowing the same to be false or counterfeit, shall, in England and Ireland, be guilty of a misdemeanor, and in Scotland of a crime and offence, and being convicted thereof shall be liable, at the discretion of the Court, to be imprisoned for any term not exceeding one year, with or without hard labor, and with or without solitary confinement."(h) Sec. 10. "Whosoever shall tender, utter, or put off any false or counterfeit coin resembling or apparently intended to resemble or pass for any of the Queen's current gold or silver coin, knowing the same to be false or counterfeit, and shall, at the time of such tendering, uttering, or putting off, have in his custody or possession, besides the false or counterfeit coin so tendered, uttered, or put off, any other piece of false or counterfeit coin resembling or apparently intended to resemble or pass for any of the Queen's current gold or silver coin, or shall, either on the day of such tendering, uttering, or putting off, or within the space of ten days then next ensuing, tender, utter, or put off any false or counterfeit coin resembling or apparently intended to resemble or pass for any of the Queen's current gold or silver coin, knowing the same to be false or couterfeit, shall, in England and Ireland, be guilty of a misdemeanor, and in Scotland of a crime and offence, and being convicted thereof shall be liable, at the discretion of the Court, to be imprisoned for any term not exceeding two years, with or without hard labor, and with or without solitary confinement.(i) (g) Rex v. Fuller & Robinson, ante, p. 86. The possession in this case was under particularly suspicious circumstances; the coin being wrapped up in parcels with soft paper to prevent it from rubbing. The marginal note to Parker's case, Leach 41, states, that "having the possession of counterfeit money, with intention to pay it away as and for good money, is an indictable offence at common law." But, quære, if the point stated in the marginal note was actually decided in Parker's case; and see ante, p. 85. (h) This clause is taken from the 2 Will. 4, c. 34, s. 7. As to hard labor, &c., see ante, p. 104. See the interpretation clause, ante, p. 95. (i) This clause is taken from the 2 Will. 4, c. 34, s. 7. The words "any other piece" are substituted for "one or more piece or pieces," and the words "any false or counterfeit coin" for "any more or other false or counterfeit coin." As to hard labor, &c., see ante, p. 104. See the interpretation clause, ante, page 95. 1 An indictment for fraudulently passing counterfeit money must charge an intent to defraud the person to whom it was passed; and to sustain such indictment it must appear that the money was delivered with a knowledge of its character and with intent to defraud the person to whom it was passed; and the indictment will not be sustained by proof of a sale of counterfeit money to a person who knew it to be counterfeit: Harper v. State, 8 Humph. 93. To support an indictment against the defendant for having in his possession a counterfeit bank bill, knowing to be counterfeit, and with intention to pass the same as good, the government must prove the possession, knowledge and intent to pass, and proof of possession is not sufficient to throw on the defendant the burthen of explaining his possession and that he did not intend to pass the same: Brown v. People, 4 Gilm. 439. When the prosecutor in an information against A. for putting off a counterfeit bank bill, knowing it to be counterfeit, having given evidence to prove that A. & B. had entered into a conspiracy to put off counterfeit bills similar to the bill described in the information, attempted to show that A. knew the bill in question to be counterfeit, and for this purpose he offered evidence to prove that at two different places, a day or two previous to the alleged offence, and at another place soon after its commission, B. put off other counterfeit bills of the same bank, A. being in company with B. immediately before and after such putting off by B. but not actually present with him at those times, it was held that the whole of such evidence was proper to go to the jury; and if they were satisfied that such conspiracy existed between A. & B. and that B. in pursuance thereof, put off such counterfeit bills in the manner stated, these acts of B. were as strong evidence against A. to prove his knowledge of the bill in question being counterfeit as though he had personally done the same acts: State v. Spalding, 19 Conn. 233. Sec. 11. "Whosoever shall have in his custody or possession three or more pieces of false or counterfeit coin resembling or apparently intended to resemble or pass for any of the Queen's current gold or silver coin, knowing the same to be false or counterfeit, and with intent to utter or put off the same or any of them, shall, in England and Ireland, be guilty of a misdemeanor, and in Scotland of a crime and offence, and being convicted thereof shall be liable, at the discretion of the Court, to be kept in penal servitude for the term of three years, or be imprisoned for any term not exceeding two years with or without hard labor, and with or without solitary confinement."(k) *Sec. 12. Whosoever having been couvicted, either before or after the *121] passing of this Act, of any such misdemeanor or crime and offence as in any of the last three preceding sections mentioned, or of any felony or high crime and offence against this or any former Act relating to the coin, shall afterwards commit any of the misdemeanors or crimes and offences in any of the said sections mentioned, shall, in England and Ireland, be guilty of felony, and in Scotland of a high crime and offence, and being convicted thereof shall be liable, at the discretion of the Court, to be kept in penal servitude for life or for any term not less than three years, -or to be imprisoned for any term not exceeding two years, with or without hard labor, and with or without solitary confinement."(1) This clause is taken from the 2 Will. 4, c. 34, ss. 7, 8, but those sections only applied to offences committed after a conviction for a misdemeanor: but it was expedient to extend the clause to convictions after a previous conviction for felony; for such previous conviction rendered the offender deserving of at least as high a punishment as if he had been previously convicted of any misdemeanor mentioned in any of the three preceding sections, and it sometimes happened that it was easier to prove a previous conviction for felony than for such a misdemeanor; as the former might have taken place in the same county where the subsequent offence was committed, but not the latter. Sec. 37. "Where any person shall have been convicted of any offence against this Act, or any former Act relating to the coin, and shall afterwards be indicted for any offence against this Act committed subsequent to such conviction, it shall be sufficient in any such indictment, after charging such subsequent offence, to state the substance and effect only (omitting the formal part) of the indictment and conviction for the previous offence; and a certificate containing the substance and effect only (omitting the formal part) of the indictment and conviction for the previous offence, purporting to be signed by the clerk of the court or other officer having or purporting to have the custody of the records of the court where the offender was first convicted, or by the deputy of such clerk or officer, shall. upon proof of the identity of the person of the offender, be sufficient evidence of the previous conviction, without proof of the signature or official character or authority of the person appearing to have signed the same, or of his custody or right to the custody of the records of the court, and for every such certificate a fee of six shillings and eightpence, and no more, shall be demanded or taken; and the proceedings upon any indictment for committing any offence after a previous conviction or convictions shall be as follows; (that is to say), the offender shall, in the first instance, be arraigned upon so much only of the indictment as charges the subsequent offence, and if he plead not guilty, or if the Court order a plea of not guilty to be entered on his behalf, the jury shall be charged, in the first instance, to inquire concerning such subsequent offence only; and if they find him *122] guilty, or if on an arraignment he plead guilty, he shall then, and not *before, be asked whether he had been previously convicted as alleged in the indictment, and if he answer that he had been so previously convicted, the Court may proceed to sentence him accordingly, but if he deny that he had been so previously convicted, or stand mute of malice, or will not answer directly to such question, the jury shall then be charged to inquire concerning such previous conviction or convictions, and in such case it shall not be necessary to swear the jury again, but (k) This clause is taken from the 2 Will. 4, c. 34, s. 8, with the addition of the words in italics. As to hard labor, &c., see ante, p. 104. See the interpretation clause, ante, p. 95. (7) As to hard labor, &c., see ante, p. 104. the oath already taken by them shall for all purposes be deemed to extend to such last-mentioned inquiry; Provided that if upon the trial of any person for any such subsequent offence such person shall give evidence of his good character, it shall be lawful for the prosecutor, in answer thereto, to give evidence of the conviction of such person for the previous offence or offences, before such verdict of guilty shall be returned, and the jury shall inquire concerning such previous conviction or convictions at the same time that they inquire concerning such subsequent offence." This clause is principally new. Under the 2 Will. 4, c. 34, it was necessary in an indictment for a subsequent offence, to set out at length the previous indictment, &c., and to give in evidence a copy of that indictment, &c.: this was very objectionable, and therefore this clause has provided for a short statement in the indictment, and for a certificate containing the substance and effect of the former indictment, &c., it has also provided for the proceedings on the arraignment, and in the same manner as on an indictment for larceny after a previous conviction for felony. The words "after charging the subsequent offence" was inserted in order to render it absolutely necessary always to charge the subsequent offence or offences first in the indictment, and after so doing to allege the previous conviction or convictions. This was the invariable practice on the Oxford Circuit, and the Select Committee of the Commons were clear that it ought to be universally followed, so that the previous conviction should not be mentioned, even by accident, before a verdict of guilty of the subsequent offence had been delivered. The proceedings on the arraignment and trial are now to be as follows: The defendant is first to be arraigned on that part only of the indictment which charges the subsequent offence; that is to say, he is to be asked whether he be guilty or not guilty of that offence. If he plead not guilty, or if the Court order a plea of not guilty to be entered for him under the 7 & 8 Geo. 4, c. 28. s. 2, or 9 Geo. 4, c. 54, s. 8 (I.), where he stands mute or will not answer directly to the charge, then the jury are to be charged in the first instance to try the subsequent offence only. If they acquit of that offence, the case is at an end; but if they find him guilty of the subsequent offence, or if he plead guilty to it on arraignment, then the defendant is to be asked whether he has been previously convicted as alleged, and if he admit that he has, he may be sentenced accordingly; but if he deny it, or stand mute of malice, or will not answer directly to such question, then the jury are to be charged to try whether he has been so previously convicted, and this may be done without swearing them again, and then the *previous conviction is to be proved in the same manner as before this Act passed. (m) [*123 A doubt has been raised as to the mode of proceeding where a prisoner is indicted after this Act came into operation for an offence against the former Act. Where the prisoner was indicted for feloniously uttering counterfeit coin on the 19th of October, 1861, after a previous conviction, and tried in the November following, the Recorder and Common Serjeant held that the proceedings at the trial must be as before the new Act passed.(n) But where the same question arose in an ordinary case of felony, Byles, J., was of opinion that, as far as the offence was concerned, the offence was governed by the former statute; but as to the procedure at the trial, that was to be regulated by the Act which was in force at the time of the trial.(0) But Martin, B., is said to have subsequently held that the former view was correct. (p) (m) See also the note Greaves' Cr. Acts, 199, 2d edit. (n) Reg. v. Montrion, 9 Cox C. C. 27. (0) Anonymous, 9 Cox C. C. 28. (p) Anonymous, Ibid. It seems quite clear that Byles, J., fell into a misapprehension. The old Acts are all kept alive by sec. 3 of 24 & 25 Vict. c. 95, as to all offences committed before the 1st of Nov. 1861, and that section in addition, expressly provides that every such offence "shall be dealt with, tried," &c., in the same manner as if the repealing Act had not passed; and sec. 37 of the Coin Act and sec. 116 of the Larceny Act provide in the commencement for the indictment for offences against those Acts, and the subsequent parts of those sections ought to be held to apply to those cases only. See the note, Greaves' Cr. Acts, 199, 2d edit. It is clear from the terms of the clause that the certificate is admissible, if it be apparently regularly framed, without any additional evidence. Two cases are reported, in which it is said that Cresswell, J., held that, where a certificate was produced purporting to be signed by a clerk of the peace, there must be some evidence in addition that the certificate is genuine and comes from the proper custody, as by proof of the handwriting, or that the document came from the office of the clerk of the peace.(q) The proviso as to giving evidence of the previous conviction, if the prisoner give evidence of his good character, remains unaltered. If the prisoner, whether by himself or his counsel, attempts to prove a good character for honesty, either directly, by calling witnesses, or indirectly, by crossexamining the witnesses for the Crown, the prosecution may give the previous conviction in evidence against the prisoner. (r) If, however, a witness for the prosecution were asked by the prisoner's counsel some question, which has no reference to character, and he happened to say something favorable to the prisoner's character, the prisoner would not be said to give evidence as to his character, and the previous conviction ought not to be admitted.(s) Sec. 15. "Whosoever shall tender, utter, or put off any false or counterfeit coin *124] resembling or apparently intended to resemble or pass for any of the Queen's current copper coin, knowing the same *to be false or counterfeit, or shall have in his custody or possession three or more pieces of false or counterfeit coin resembling or apparently intended to resemble or pass for any of the Queen's current copper coin, knowing the same to be false or counterfeit, and with intent to utter or put off the same or any of them, shall, in England and Ireland, be guilty of a misdemeanor, and in Scotland of a crime and offence, and being convicted thereof shall be liable, at the discretion of the Court, to be imprisoned for any term not exceeding one year, with or without hard labor, and with or without solitary confinement." (t) The prisoner was indicted for uttering a counterfeit coin intended to resemble a piece of the current coin called a groat. All the witnesses called the coin a fourpenny-piece, except the Inspector for the Mint, who called it a groat, and said it had had that name, he believed, from the earliest period. It had the word "fourpence" upon it, but the original name was groat in the time of Edward III. They were not then the same size and weight as this. He had heard them called groats; they were called groats as well as fourpenny pieces in the proclamation. It was contended for the prisoner that the coin was not proved by legal evidence to be a groat, the proclamation not having been produced. Maule, J., Erskine, J., being present, in summing up, said: "A groat is a common word belonging to our own mother tongue, such as uttering,' 'public-house,' half-pint,' and many other expressions; and you are here as Englishmen to use your own knowledge of your own language; and if, understanding the matter without any evidence, you are satisfied that a fourpenny-piece and a groat are the same thing, then the prisoner is rightly indicted. It is very true that a groat in Edward the Third's time weighed a great deal more than a fourpenny-piece does now; and so it is with respect to other coins. Things have kept their names, though they have changed their value."(u) 6 Under the 8 & 9 Will. 3, c. 26, s. 6, which had only the words "take, receive, pay, or put off,” there must have been an actual passing or getting rid of the money, and not merely an attempt to do so. The prisoner had carried a large (7) Reg. v. Whale, 1 Cox C. C. 69; Reg. v. Stone, Ibid. 70. These cases are very proba bly misreported, as it is quite clear that no such evidence is required, and the universal practice has been to the contrary. (r) Reg. v. Shrimpton, 2 Den. C. C. 319; Reg. v. Gadbury, 8 C. & P. 676 (34 E.C. L. R.). (s) Per Lord Campbell, Reg. v. Shrimpton, supra. So if a witness were to volunteer any evidence of the prisoner's good character, it clearly would not render the conviction admissible. p. 104. (t) This clause is taken from the 2 Will. 4, c. 34, s. 12. As to hard labor, &c., see ante, |