UNITED STATES v. LEE, 26 F. Cas. 908

THE COURT (THRUSTOX, Circuit Judge, contra) refused to let the note go in evidence, it not being such a note as is described in the indictment. MORSELL, Circuit Judge, was also of opinion, that it was not a promissory note because never uttered or delivered, and remaining in the hands of the maker THRUSTOX, Circuit Judge, was of opinion that it was a promissory note within the penitentiary law, and was valuable to the maker because he could raise money upon it, for sixty days; and that it was also valuable to the thief, who might have sold it.

He also thought that the note offered in evidence, namely, at sixty days with interest, supported the averment of a note at sixty days without interest; as if the averment had been of a cow; and the cow stolen had been a red cow; the proof of stealing a red cow would have supported the averment of stealing a cow. CRANCH, Chief Judge, was of opinion that a note for $200 at sixty days with interest, did not support the averment of a note for $200 at sixty days without interest. Verdict, guilty of stealing the pocket-book only; and not guilty of stealing the note.

The grand jury, afterwards at the same term found another indictment for stealing the note, upon the trial of which— THE COURT (nem. con.) at the prayer of the defendant’s counsel (Mr. W. L. Brent), instructed the jury that if. from the evidence, they %should find that the note was in the pocket-book when it was stolen by the defendant, and that he has been convicted of stealing the pocket-book, they ought to find their verdict for the defendant; which they did.