#### State v. Ward.

From Rutherford.

hi an indictment, the words “false, forged and counterfeited promissory note, commonly called a bank note, purporting to be a good and genuine bank note of one hundred dollars, on the bank of the State of Scuili-Carolina,’5 contain a sufficient averment of the exls■ tence of such a bank as the bank of the State of South-Carolina.

When any irregularity in forming a fury is silently acquiesced in at the time by the prisoner, and especially when he partially consents, for the sake of a trial, to such irregularity, he waives his right to except after conviction, and thereby take a double chance.

After conviciion for an offence not capital, and appeal to this Court, the prisoner is not entitled to be bailed, as a matter of right; it is a question addressed to the sound discretion of the Judge before whom the appeal is taken.

indictment for passing counterfort money, knowing it to be such. The indictment charged, that the Defendant, if designing anti intending to injure and defraud one Millington Patillo, with force and arms, in the county aforesaid, did pass as good and genuine, to the said Mil-lington Patillo, a false, forged and counterfeited promissory note, commonly called a bank {¡ote, purporting to be a good and genuine bank note of one hundred dollars en the bank of the Btate of South-Osrolina, which said *444false, forged, ami counterfeited bank note is as follows, that is to say — (The paper was here set out \ erbaiim)— with an intent then and there to defraud the said Mil-lingtou Fatillo, he the said James Ward, at the time he so passed the said counterfeited bank nose, well knowing,55 &c. ;

The Defendant was convicted before Daniel, Judge, and moved for a new trial, 1st, because the State’s panel of Jurors, summoned by the Sheriff’s officers on the morning of the day of trial, liad been discharged by the Court, and a tales Jury ordered, by whom he was tried. The facts on lilis part of the case were, that the Defendant was placed at the bar, and declared himself ready for trial; the Solicitor declared he was not ready on the part of the State, and remarked tliat he should be compelled to file an affidavit for removal of the. cause, because the State could not have justice done it, as there were not twelve, of the original pune!, and that, several of the tales jurors summoned were men strongly suspected and implicated in the same species of offence with the Defendant, but that he could not make it so appear as to support a challenge for cause. While he was preparing the affidavits, the Court remarked, that if the parties wished to try the indictment, he would discharge the tales already summoned, and direct the Sheriff to return another tales, giving him no direction as to whom lie should return. No objection was made by either party, and the Sheriff returned, on two pieces of paper, the names of bystanders summoned. The Clerk called the names on one of the pieces of paper, when the Solicitor observed, that one of the names called was on the list of tales which had been discharged ; that he had objected to it principally because of this mail, and that if he was a juror, he could net try. The Court, not knowing that the return was on two pieces of paper, and thinking a Jury might he. obtained without reaching the objectionable name, ordered the Clerk to call the first four names *445 tm tbo list j tho Clerk did rail the first four on the other piece, of paper, and they, with the original panel, made rp a Jury.

Another ground on which a new trial ivas moved for, wau, that the Jury had taken out of Court on retirement several bank notes which had been introduced in evidence. to prove the note, which Defendant had passed, a counterfeit, As to this part of the case it appeared, that Cob Erwin, Cashier of tha Bank at Morgauton, was called as a witness, and after stating that a very large rtnantHy of the notes of the hank of Sonth-Oarolina had passed through his hands, proceeded to describe the vig-Relies, éic. ai' íwg dollar’bills and of one hundred dollar bills of that batik, and then stated that he believed ibis was a bill originally for two dollars, which had been altered to a bill for one hundred. Fie then exhibited two genuine bills of these several denominations, which tin: Jury requested to take out with them, and, as no objection was made, did take out witii them. The. Defendant’s counsel, on the trial, admitted tho bill in question to be a forgery, and rested the defence on Ward’s ignorance of that fact.

The motion for a new trial'was ovo Tried.

It was then moved y» arrest of judgment, that the indictment did not aver tha» there was such a bank as the bank of South-Carolina.

This was also overruled, and sentence was passed, from which there was an appeal.

Another point in the case arose on the Defendant’s prayer to be bailed 5 the Solicitor contending, that as there was a conviction, the Defendant could not be bailed ¡unless by consent of iS;e prosecuting officer of the State 3 and the Court refused to bail.

Gaston for the Defendant,

as to the necessity for an averment, in the indictment, of the existence of the State basil’- of South-Carolina, referred to 2 Mast 980 Iq 982'’-- 1 *446 Foster 116, Ann Lewis’s case — State v. Twitty, decided December, 1822. As to the prisoner’s right to be bailed, after taking a view of the existing law in England on flje with its origin, he contended, that our Constitution entitled the Defendant to be bailed ; it meant especially to guard against abuses in criminal prosecutions. The bill of rights manifests the jealousy of our ancestors on the subject — “ All prisoners shall be. bailable by sufficient sureties,' unless for capital offences when the proof is evident or the presumption great.” The words should be construed literally, they extend to “ all prisoners.” If it be said it will narrow the Court’s discretion, we answer, it was intended so to do. The Defendant in this case is imprisoned, not under a judgment, for the judgment is nullified by his appeal; the law gives him the right to appeal, but it surely.was never meant, that for the enjoyment of this right he should pay a price so enormous as the loss of his liberty. The verdict, it may be said, furnishes proof positive : it is true, but the offence here is not capital.

Henderson, Judge.

The indictment must affirm every fact which it is necessary to prove on the trial, and nothing else is required to be proven : and, as in this case, the Defendant cannot be found guilty under the act of 1819, for a violation of which, he is indicted, unless the note which lie passed purported to be issued by some Bank within the United States, or the territories thereof, it follows, that such affirmations must be contained in the indictment: that the State of South-Caro-liná is one of the United States, we judicially know: she is a party to the federal compact: we therefore want not a Jury to inform us of that fact. But it must also appear that there is such a Bank as the State Bank of South-Carolina : of this fact, we have no judicial knowledge : we must, therefore, derive our information from the affirmation of the Jury ; and that affirms the indict-*447inent to bo true, ami no more and that states, that the Defendant passed the note in question, which purported to be issued by the State Bank of South-Carolina. There is no difference about the moaning of the word purport: it means substance, as appears upon its face, to every eye that reads, to use the language of Mr. ft idler: but the question is, does the word purport run through the whole description, and is that description satisfied, if there be not such a Bank ? Á note cannot be issued by the South-Carolina Bank, unless there be such a Bank , neither can it appear to bd issued by "the South-Carolina Bank, unless there be such a one. The word purport stops at the word issued.* all before, by the previous epithets, is made false and fictitious 5 that which comes after, is a reality. The word purporting relates to the foregoing falsities and fictions, and their criminality consists in the note not being what it appears to be; that is, a note issued by the South-Carolina Bank, liad it been necessary to have shewn tiiat there was no such Bank, the statement in the indictment would not have iet in such evidence. There must have been an averment or clause, .that there was no such Bankj this, though, is somewhat arguing in a circle. The irregularity in forming the Jury, if there was one, 1 think, was completely waived by the Defendant: he shall not, by consent of this kind, take a double chance. Upon the question of bailing tlie Defendant after the allowance of an appeal, Í am of the opinion that the conduct of the presiding' Judge was right. I think that the clause in Use Constitution, which declares that all prisoners shall be bailable by sufficient securities, unless for capital offences, where the proof is evident, or the presumption great, relates entirely to prisoners before conviction ; for although the words, where the proof is evident, or the presumption great, relate to capital cases only, that is, to prisoners in capital cases, the meaning is evidently prisoners before conviction 5 for after conviction, there is no such thing as proof and presumption 5 all is certainty, and *448that the word prisoners must be understood alike in each member of the sentence, that is, prisoners before con vie- . tion | and persons remain convicted or the offence, not-withstanding the appeal; for the appeal is for matter of law only ; the facts remain unaffected by the appeal, unlike the cases of appeals for matters of fact as well as for matters of law, and where a new trial de novo in given as on appeals from the County to the Superior Courts, or from a single justice, to the County Court, where the appeal annihilates the verdict and judgment both : it. seems that in England, the Defendant, after conviction, cannot be hailed, even in petty misdemeanours, without the consent of the. Attorney-General, not even after writ of error brought 5 bisé as a writ of error is not matter of right in a criminal casé, but matter of favour extended by the Attorney-General, it is not so inconsistent to vest in him the power-of assenting to bail; but here an appeal is matter of right. ' To compel the Defendant, in all cases of appeal, even for the most petty misdemean-ours, to go to jail, but by permission of the prosecuting officer, would render useless the right of appeal; and an indiscriminate right of going at large, upon giving bail, . after an appeal, would be rendering the criminal law a dead letter. We think the spirit of our law requires a middle course to leave it to the sound discretion of the Judge, before whom the appeal is taken. The Court below7 will proceed to judgment.

Taylor, Chief-Justice, concurred with HenbeksoN.

Hall, Judge.

I dissent from that part of the opinion of the Court, which decides that the existence of the Bank in question, is sufficiently set forth and averred jn the indictment; in other respects, I concur.