Allen v. State,

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| Ala. | Dec 15, 1883

STONE, J.

— The instrument described in the indictment is one by which a pecuniary demand or obligation purports to be created, and the false making of it, with intent to defraud, is forgery in the second degree. — Code of 1876, § 4340. And the indictment is sufficient. — Johnson v. The State, 35 Ala. 370" court="Ala." date_filed="1860-01-15" href="https://app.midpage.ai/document/johnson-v-state-6506638?utm_source=webapp" opinion_id="6506638">35 Ala. 370; Thompson v. The State, 49 Ala. 16" court="Ala." date_filed="1873-01-15" href="https://app.midpage.ai/document/thompson-v-state-6508395?utm_source=webapp" opinion_id="6508395">49 Ala. 16; Jones v. State, 50 Ala. 161" court="Ala." date_filed="1874-01-15" href="https://app.midpage.ai/document/jones-v-state-6508644?utm_source=webapp" opinion_id="6508644">50 Ala. 161; Rembert v. The State, 53 Ala. 467" court="Ala." date_filed="1875-12-15" href="https://app.midpage.ai/document/rembert-v-state-6509149?utm_source=webapp" opinion_id="6509149">53 Ala. 467; Anderson v. The State, 65 Ala. 553" court="Ala." date_filed="1880-12-15" href="https://app.midpage.ai/document/anderson-v-state-6510675?utm_source=webapp" opinion_id="6510675">65 Ala. 553; Brown v. The State, 52 Ala. 345" court="Ala." date_filed="1875-06-15" href="https://app.midpage.ai/document/brown-v-state-6509022?utm_source=webapp" opinion_id="6509022">52 Ala. 345.

It is here objected, that the City Court ordered too many *560additional jurors to be drawn and summoned, to supply the deficiency in the panel of the petit jury. The record shows, affirmatively, that this was done at the express request of the defendant, and that he did not except to the action of the court. If there is any thing in this objection, the defendant has precluded himself from urging it, by himself causing the act to be done which he now seeks to review. — Leonard v. The State, 66 Ala. 461" court="Ala." date_filed="1880-12-15" href="https://app.midpage.ai/document/leonard-v-state-6510775?utm_source=webapp" opinion_id="6510775">66 Ala. 461; Shelton v. The State, 73 Ala. 5" court="Ala." date_filed="1882-12-15" href="https://app.midpage.ai/document/shelton-v-state-6511558?utm_source=webapp" opinion_id="6511558">73 Ala. 5.

Each of the affirmative charges given at the instance of the State’s solicitor, is' free from error. There is no testimony tending to show any custody, or even the existence of the forged order, until it was produced by the defendant, and credit obtained on the strength of it. In this state of the proof, the jury were authorized to infer an intent to defraud, and, if necessary, that the defendant himself forged the paper. Clark’s Manual, § 1174; Harrison v. The State, 36 Ala. 248" court="Ala." date_filed="1860-06-15" href="https://app.midpage.ai/document/harrison-v-state-6506736?utm_source=webapp" opinion_id="6506736">36 Ala. 248; McGuire v. The State, 37 Ala. 160" court="Ala." date_filed="1861-01-15" href="https://app.midpage.ai/document/maull-v-state-6506860?utm_source=webapp" opinion_id="6506860">37 Ala. 160.

The charge moved for by defendant, is not shown to have been .asked in writing. This justified its refusal, whether it asserted a legal truism or not. But the charge was properly refused, even if it had been asked in writing.

There is nothing in the other objections urged: It is not shown that the City Court did 1 ’ 1 1 ' ’ ’ given and refused, as it was sume error. If it was desired to raise this question, there' should have been an exception in the court below. — Tyree v. Parham, 66 Ala. 424" court="Ala." date_filed="1880-12-15" href="https://app.midpage.ai/document/tyree-v-parhams-6510769?utm_source=webapp" opinion_id="6510769">66 Ala. 424.

Affirmed.