Opinion
6 Div. 69.
May 23, 1944. Rehearing Denied June 13, 1944.
Appeal from Circuit Court, Tuscaloosa County; W.C. Warren, Judge.
Mary Hall and Reba Cannon were convicted of forgery in the second degree, and they appeal.
Affirmed.
Certiorari denied by Supreme Court in Hall v. State, 245 Ala. 671, 18 So.2d 574.
The instrument alleged to have been forged or uttered is as follows:
"The State of Alabama
"Tuscaloosa County
"In the Inferior Court of Tuscaloosa County
"We, Bilbo Gast Principal and __________ sureties, agree to pay to the State of Alabama Three Hundred — Dollars, unless the said Bilbo Gast appears before the Inferior Court of Tuscaloosa County on the 4 day of June, 1943, and from day to day, and from term to term, thereafter, until discharged by due course of law to answer a criminal prosecution for the offense of D.W.I.
"And we, and each of us, hereby waive all rights of claim of exemptions we or either of us have now, or may hereafter have, under the Constitution and laws of the State of Alabama, and we hereby severally certify and solemnly swear that we have property free from all encumbrance, to the full amount of the above bond.
"Witness our hands and seals this 1 day of June 1943.
Prisoner sign Top Line Name Address Approved this the ___ __ X (L.S.) ----------------------------- day of _____ 194_ T.L. Goodman (L.S.) Northport, Ala. ----------------------------- P.M. Hinds (L.S.) Tuscaloosa, Ala. ------------------------ ----------------------------- Sheriff C.Z. Tierce (L.S.) Northport, Ala. ----------------------------- By __________ Deputy Sheriff W.W. Deal ----------------------------- "Notice: This Bond must be signed with ink and will not be approved if signatures are made with pencil."F.F. Windham, of Tuscaloosa, for appellant.
A writing void on its face, because of want of legal requisites to its validity, is not the subject of an indictment for forgery, in consequence of its incapacity to effect fraud. Aders v. State, 21 Ala. App. 41, 104 So. 882; Hobbs v. State, 75 Ala. 1; Ex parte Dudley, 188 Ala. 77, 66 So. 91; Crow v. State, 236 Ala. 26, 183 So. 907; Id., 28 Ala. App. 319, 183 So. 897. There must be both intention and power to defraud, or the legal offense is not committed. Everage v. State, 14 Ala. App. 106, 71 So. 983; Rembert v. State, 53 Ala. 467, 25 Am.Rep. 639; Williams v. State, 90 Ala. 649, 8 So. 825. If the paper in question was capable of injuring or defrauding some one by proof of extrinsic facts (which appellants deny), said facts should have been averred. Authorities, supra. No liability could have accrued on the bond until its delivery and acceptance by the State, signature of Gast and his discharge thereunder, and the forfeiture thereon after being made final. Birmingham News Co. v. Moseley, 225 Ala. 45, 141 So. 689.
Wm. N. McQueen, Acting Atty. Gen., and Bernard F. Sykes, Asst. Atty. Gen., for the State.
The test of whether or not a written instrument can be subject of forgery is, if the instrument were genuine does it possess an apparent legal efficacy and capacity to defraud. Crow v. State, 236 Ala. 26, 183 So. 907; Lessley v. State, 18 Ala. App. 657, 94 So. 262; Code 1940, Tit. 15, § 208; Ex parte Dudley, 188 Ala. 77, 66 So. 91. The rule that an obligee is put on notice that the obligors signing a bond are not bound when the bond recites the name of another obligor not signing the bond is obviated by the statute, so far as a bail or appearance bond is concerned. Code, Tit. 15, § 208; Painter v. Maudlin, 119 Ala. 88, 24 So. 769, 72 Am.St.Rep. 902; 11 C.J.S., Bonds, p. 407, § 21. An instrument may constitute a forgery although if it were genuine other steps would have to be taken before it would be perfected. 23 Am.Jur. 638, § 29.
Conviction was for forgery in the second degree. The indictments, in code form, charged the defendants with forgery of the appearance bond appearing in the report of the case and, in the alternative, with the uttering of said forged bond.
The bond, copied in haec verba in the indictments, was unsigned by the principal, Gast, and the first argument for error is that such an instrument, without the signature of the principal, Gast, was on its face a nullity, the forgery and passing of which constituted no crime. Demurrers asserting this were overruled by the trial court. Of course, had the forged bond been void or without legal efficacy on its face, the demurrers would have been well taken, but this is not the case here.
The bond, if forged, had sufficient legal efficacy to injure or defraud when approved and the defendant released thereon. Our statute sustains this position. "No bail are (is) discharged * * * because the defendant has not joined in the same * * * where the defendant is released from custody on approval of such undertaking of bail." Code 1940, Title 15, Sec. 208. In other words, the bail bond was as legally efficacious unsigned by the defendant as signed, when upon approval thereof he had been released on it.
But, without bringing into play the above statute, we think the result would be the same. It is only necessary that the forged instrument possess some apparent legal efficacy; that there is a reasonable possibility that it may operate to cause injury; and such an instrument may constitute a forgery although if it were genuine other steps would have to be taken before it would be perfected. 23 Am.Jur., pp. 687, 688, Secs. 28, 29. This would be the status of the bond here without the operation of the quoted statute.
We must, and do, affirm the action of the trial court in overruling the demurrers.
It is also contended that a verdict should have been directed for defendants because of the uncontroverted proof that the prisoner, Gast, was not released on the bond. The officer to whom it was delivered discovered the forgeries and this ended the affair, with the two present defendants ending up in jail.
The law is clear that, in such cases, it is not essential that actual injury result from the forgery or the issuance or uttering of the forged instrument. Am.Jur., supra, Sec. 28; United States v. Plyler, 222 U.S. 15, 32 S.Ct. 6, 56 L.Ed. 70.
Nor is it necessary, in order to constitute forgery, that the fraudulent intent be carried out to successful accomplishment. Am.Jur., supra, p. 688, Sec. 30.
The three essential elements generally prescribed as the constituents of the crime were proved in the instant case, viz., (1) a false writing (forged signatures on the bond), (2) an instrument apparently capable of defrauding, and (3) an intent (inferable from the proven facts) to defraud. 23 Am.Jur., p. 678, Sec. 6.
When the defendants presented and delivered the bond to the officer as a genuine instrument, for the purpose of procuring the release of Gast from jail, this constituted an uttering of the forged document and likewise sufficed to make the crime complete, both of forgery and the uttering of the forged instrument. We paraphrase from a recent case much similar to the present one: The proof was uncontradicted that the bond was forged and that the defendants uttered it in order to procure the release of the principal thereof from jail. From their conduct in connection therewith, the jury was also authorized in concluding that they committed the forgeries. Stone v. State, ante, p. 166, 13 So.2d 434, 435. See also Terry v. State, 29 Ala. App. 340, 197 So. 44.
Under the proven facts the defendant was not entitled to a directed verdict.
We find no error in the record. Let the judgment be affirmed.
Affirmed.