Opinion
8 Div. 960.
February 27, 1940. Rehearing Denied April 30, 1940.
Appeal from Circuit Court, Franklin County; Chas. P. Almon, Judge.
Marvin Terry was convicted of forgery, and he appeals.
Affirmed.
The demurrer takes the points (a) that the indictment charges two separate and distinct offenses, one count charging the forgery of the name of Dill and another charging the forgery of the name of Hester and it is not alleged both were at the same time; the bond is not an instrument subject to forgery; (c) the indictment in one count charges two separate and distinct offenses, in the first part forging and in the second part uttering said bond; (d) it is not alleged that defendant uttered said bond knowing it was forged; and (e) the different counts in the indictment are not numbered.
Certiorari denied by Supreme Court in Terry v. State (8 Div. 50), 197 So. 46.
Wm. Stell, of Russellville, for appellant.
The proper way to test the sufficiency of the evidence to sustain an indictment is by motion to exclude all the evidence offered by the State and discharge defendant. Satterfield v. State, 24 Ala. App. 257, 134 So. 30. Possession of the forged bond in Franklin County was not evidence that defendant forged the bond, because he was not the beneficiary of the bond. Overby v. State, 24 Ala. App. 254, 133 So. 915; Hobbs v. State, 75 Ala. 1. The uttering of the bond was in Colbert County and without the jurisdiction of the Circuit Court of Franklin County. Bishop v. State, 30 Ala. 34. The judgment convicting defendant of forging the name of Dill and of Hester cannot be permitted to stand because the evidence does not show that if their names were forged the forging or uttering was at the same time so as to constitute one offense, because they are separate and distinct offenses. Thomas v. State, 111 Ala. 51, 20 So. 617; Meadows v. State, 136 Ala. 67, 34 So. 183. The indictment should charge knowledge of the forging of the bond. Shelton v. State, 143 Ala. 98, 39 So. 377.
Thos. S. Lawson, Atty. Gen., and Jas. F. Matthews, Asst. Atty. Gen., for the State.
The indictment sufficiently charged forgery in the second degree, and was in the form prescribed by statute. Code, §§ 4121, 4556 (62). Neither the statute nor the prescribed form makes knowledge of the forged character of the instrument an essential ingredient of the offense, other than such as may be inferred from the requirement of intent to defraud as one of the essentials. Code, §§ 4121, 4556(62), supra. Espalla v. State, 108 Ala. 38, 19 So. 82. If the instrument, upon its face, or by reason of attendant circumstances, is susceptible of use for the purpose of defrauding another, upon assumption by him of its genuineness, it falls within the category of "any instrument in writing" being or purporting to be the act of another, by which a pecuniary demand is created, and as such is the subject of forgery. Code, § 4121. Burden v. State, 120 Ala. 388, 25 So. 190, 74 Am. St. Rep. 37; Allen v. State, 74 Ala. 557. Where a person in one county sent a forged paper to a person in another county who accepted it as genuine, the venue was properly laid in the latter county. McGuire v. State, 37 Ala. 161. An indictment for forgery will be sustained upon proof that defendant with fraudulent intent and guilty knowledge uttered the forged instrument. The venue is in the county where the instrument is uttered. Gardner v. State, 96 Ala. 12, 11 So. 402. In absence of proof of existence of forged instrument prior to utterance by defendant, the jury is authorized to infer an intent on his part to defraud and that he forged it. Allen v. State, 74 Ala. 557.
Demurrers to the indictment were properly overruled. Code 1928, Sec. 4121, and section 4556, form 62; Jennings v. State, 17 Ala. App. 640, 88 So. 187. The bond, the forgery of which is alleged, is "any instrument or writing, being or purporting to be the act of another," within the meaning of Section 4121, Code 1928, the false and fraudulent making of which is forgery in the second degree. Hall v. State, 21 Ala. App. 476, 109 So. 847.
The State's testimony was without dispute. It was to the effect that one F. S. Wilson was convicted in Colbert County of the offense of murder in the second degree; that he gave notice of an appeal, and his bond set at $2,000; that appellant, in Franklin County, was active, with others, in procuring sureties on the appeal bond of Wilson; that a number of signatures to said bond were procured by appellant, and one or more procured by others in the absence of appellant; that the bond was eventually by appellant, presented to the Sheriff of Franklin County who endorsed on it the words: "I would except this bond in my county. D.C. Nix, Sheriff" (italics ours); that at the time said bond was presented to the Sheriff of Franklin County the name of A. B. Hester appeared on it as one of the sureties, and, inferentially, the name of W. E. Dill so appeared; that sometime later, the bond, with the names of both Dill and Hester affixed as sureties, was presented to the Sheriff of Colbert County by appellant, and approved by said Sheriff.
There was testimony that appellant actually asked Hester to sign said bond; and that he, on one occasion, sought Dill — apparently for the purpose of asking Dill to sign same. And that neither Dill nor Hester ever signed said bond — their names being forgeries.
The indictment was in three unnumbered counts; but which, in the order of their succession, we believe it not unreasonable to call Counts 1, 2, and 3.
Count 1 charged appellant with the offense of forging the above mentioned appeal or supersedeas bond of the said F. S. Wilson — which said bond is set out in said count in haec verba.
Count 2, so setting out the said bond, charged appellant with forging the name of W. E. Dill to same.
Count 3, likewise, charged him with forging to the said bond the name of A. B. Hester.
The verdict of the jury was: "We the jury find the defendant guilty on counts 2 and 3 as charged in the indictment."
At the close of the State's testimony — outlined above herein — appellant rested his case and made a motion to exclude the said testimony upon the ground of its insufficiency to establish any crime against him.
This was a proper method to pursue — only, though, because of this being a criminal case, as contradistinguished from a civil suit. Robinson v. State, 222 Ala. 541, 133 So. 578; Satterfield v. State, 24 Ala. App. 257, 134 So. 30.
But we think the motion was properly overruled and denied.
There was testimony which, as we understand the applicable law, certainly supported the averments of the second and third counts of the indictment. (See Title Forgery, 23 Amer. Jurisprudence pp. 673 to 708.) It seems not worth while to elaborate further.
As said in the note to Reuben Walker v. State of Georgia, where same is reported in 8 L.R.A., N.S., page 1175 — and as we think is the law: "to utter — is to declare or assert, directly or indirectly, by words or actions, that an instrument is good."
And when appellant — whose interest in the subject matter is sufficiently shown by his actions — presented the bond in question to the Sheriff of Franklin County for his endorsement, he thereby, in our opinion, represented to him that the signatures on said bond were genuine.
It being undisputed that the signatures of Dill and Hester were forgeries; and that appellant had sought, unsuccessfully, to have each of these men to sign said bond; it appears to us that under the law as we have hereinabove cited it the jury were authorized to assume that appellant committed the forgeries.
Consequently, the court was not in error in refusing to give to the jury at appellant's request the general affirmative charge to find in his favor on either Counts 2 or 3 — upon both of which he was convicted.
Nor do we find error of a prejudicial nature in any other ruling or action of the court.
And the judgment is affirmed.
Affirmed.
SIMPSON, J., not sitting.