Opinion
May Term, 1819.
From Cumberland.
Indictment charged Defendant with "feloniously stealing, taking, and carrying away, a certain Bank note, issued by the Bank of New Bern." The note offered in evidence upon the trial, purported to be issued by "The President and Directors of the Bank of New Bern." The Defendant was acquitted, because the evidence did not support the charge. He was then indicted "for feloniously stealing, taking, and carrying away, a certain Bank note, issued by the President and Directors of the Bank of New Bern." To this indictment he pleaded "former acquittal," and, to support the plea, produced the record of the first indictment, and the proceedings had thereon. Held, that
The record produced does not support the plea, and the plea overruled.
At March Term, 1816, of CUMBERLAND Superior Court, the Defendant was indicted for "feloniously stealing, taking and carrying away, a certain Bank note, issued by the Bank of New Bern, bearing date 6 November, 1809, subscribed with the name of James M'Kinlay, President, and M. C. Stephens, Cashier, for the payment of four dollars to G. Curry, or bearer, on demand, the said Bank note being then and there of the value of four dollars, and being the property, goods and chattels, of John Ray, and the money therein mentioned, payable and secured by the said Bank note as aforesaid, then and there being due and unsatisfied, to the said John Ray, the proprietor thereof, against the form of the statute in such case made and provided,"c.
The Bank note offered in evidence upon the trial of the indictment, was in the following words and figures, to-wit:
No. 413. D. 4
The President and Directors of the Bank of New Bern, promise . to pay G. Curry, or bearer, on demand, four Dollars. D New Bern, 6 Nov., 1809. R U FOUR. O F M. C. STEPHENS, Cash'r. JAS. M'KINLAY, Pres.
On behalf of the Defendant, it was insisted, that as the (217) indictment charged him with feloniously stealing, taking, and carrying away, a Bank note "issued by the Bank of New Bern," and the note offered in evidence, purported to be issued by "the President and Directors of the Bank of New Bern," the evidence did not support the charge; and of this opinion was the Court, and the Defendant was acquitted.
At September Term, 1817, the Defendant was indicted "for feloniously stealing, taking, and carrying away, a certain Bank note, issued by the President and Directors of the Bank of New Bern, of the Number 413, letter D, dated New Bern, 6 November, 1809, subscribed with the name of James M'Kinlay, Pres't," c., pursuing the description as given in the preceding indictment.
To this indictment the Defendant pleaded "former acquittal," and the Solicitor for the State replied "nul tiel record." And the record of the first indictment, and the proceedings had thereon, was offered in support of the plea. The Court was of the opinion, that the record produced did not support the plea, and the Defendant appealed.
The record produced does not support the plea. Let the plea be overruled. (218)