138 Ala. 94 | Ala. | 1902
1. The mortage set out in the indictment purports to haAre been signed by F. A. Beal, and witnessed by Frank Leigh and Arthur Wellborn.
The bill of exceptions recites that “Frank Leigh, witness for the State, upon being handed the mortgage set out in the indictment, testified, that the signature, Frank Leigh, signed to said mortgage was his signature.” J. W. McElrath testified for the State, that he was present in the bank at the time said mortgage was giA'en and saAV defendant sign the same, and the Avitnesses thereto signed it as Avitnesses, while the defendant Avas present, and before the money was paid to him. M. B. Wellborn, the president of the bank, testified, that he was present at the time, as Avere defendant, Leigh, McElrath and Arthur Wellborn; that he kneAV the "defendant, and he was the man Avho signed the mortgage to secure the indebtedness therein, and that when the
2. The witness Leigh, testified that he attested the mortgage as a witness, and McElrath testified that he saw defendant sign it. This evidence of its execution, was sufficient to authorize its admission in evidence. The mortgage is not set out in the transcript, though the evidence tended fully to identify it with the one set forth in the indictment. Without its being set out this court could not pass intelligently on defendant’s objection to it, — that there was a variance between it and the one copied in the indictment. The burden was on the party taking the bill of exceptions, to affirmatively show error to his prejudice, or the ruling will not bo disturbed. — Burns v. The State, 49 Ala. 370; Shelton v. St. Clair, 64 Ala. 565; Burgess v. A. G. S. R. R. Co., 115 Ala. 473.
3. There was no error in sustaining an objection to the question asked the witness, John Crook, who was clerk in the probate office, viz.: “In copying a paper on the record, do you always undertake to copy it as it is?” A record is proved, not in the manner attempted, but by the production and inspection of the original or of an exemplified or authenticated copy. — -King v. Martin, 67 Ala. 177; Pearce v. Clements, 73 Ala. 258.
4. The witness, Lester, for the State, had testified, that he had the mortgage in question for collection in the Fall of 1902, and was unable to find the property or defendant, F. A. Beal — the mortgagor; that he had known the defendant for several years, and had known
5. Charge 1 requested by defendant and refused Avas a substantial repetition of charge 1 given for him, and was, therefore, properly refused.
Charge 2 refused to defendant asserts a correct proposition of laAV, and was not substantially given, as contended, in either of the given charges 1 and 2.
For the errors indicated the judgment must be reversed.
Reversed and remanded.