Espalla v. State

108 Ala. 38 | Ala. | 1895

MoCLELLAN, J.

This is an indictment under section 3852 of the Code charging the false making &c. of a deed, or the uttering of a deed which had been forged &c. The indictment is in the form prescribed — P. 49, p. 272 Code — and pursues the language of the statute defining the offense. Neither the form nor the statute makes knowledge of the fact that the deed uttered had been forged an element of the offense further than is implied from the requirement that an intent to defraud is necessary to constitute the crime. This intent is alleged, and the indictment is not bad for omitting to aver that the defendant uttered the deed knowing the same to be false or forged. The trial court properly overruled defendant’s demurrer to the indictment.

The deed as to which the charge is made purported to be signed by Beulah B. Faulkner, Lewis S. Faulkner, M. C. Faulkner H. E. Faulkner, M. K. Faulkner, and S. J. Faulkner. It was shown that Major J. Faulkner, intending to convey the land covered by the alleged forged deed to his six children whose names are given above, except that no one of them has the name of H. E. Faulkner, but, instead, one of his daughters was named Laura E.Faulkner, executed a conveyance wherein by some unexplained inadvertence the name of this grantee had been written H. E. instead of L. E. Faulkner, and that this deed was recorded in the probate office of the county soon after its execution, the deed itself being kept by said Beulah, who produced it on the trial. The theory of the prosecution was that the defendant, a real estate agent, seeing this deed on the record, got the description of the land and the names of the grantees from it, and, preparing a deed conveying the land to himself, forged the names of the grantees thereto, or that this having been done by a third person, the defendant uttered the forgery with intent to defraud &c.

In this view of the case, in connection with evidence that the said Beulah and L. E. Faulkner did not sign the deed to Espalla, nor authorize the execution thereof, it was clearly competent as going to show that the deed in possession of said Beulah was intended to be made to L. E. Faulkner, and others the children of Major J. Faulkner and not to H. E. Faulkner and others, to prove that there was no other family of Faulkners in Mobile county, where the land was situate aud the deed was executed, that the witness, Beulah Faulkner, “did not know of any other family of Faulkners consisting of six children with the same Christian names” as this family, and that she, the witness had no sister named H. E. Faulkner, but that one of her sisters was named L. E. Faulkner; and that the objections to this evidence were properly overruled.

The original deed from Major J. Faulkner to his said children was competent to identify the land and grantees and to show the grant to and existence of the title in them, abstractly, and also as a predicate for further evidence that these grantees had not conveyed the property to the defendant; and the record of that deed in the probate office was properly admitted for the reason, among others perhaps, that this accounted for the fact that the deed to Espalla contained a description of the land and the names of the grantees in the original deed consistently with the fact that such deed had been all along in possession of Beulah Faulkner and also consistently with the State’s contention that Beulah and others of the grantees had not executed the alleged conveyance to Espalla. And this latter position is strengthened by the fact — and the fact itself was therefore, for this additional reason, competent — that; a mistake as to the name of the grantees was made in the original deed, in copying it or otherwise, and that this mistake was repeated in the deed purported to have been executed to Espalla, since it is unreasonable to suppose that this grantee if she had really undertaken to convey the land would have signed a name other than her own.

The name “EL E. Faulkner” is subscribed to the Es-palla deed by mark, indicating, of course, that she was illiterate and unable to write her name. It being clearly shown that “H. E. Faulkner” was in truth L. E. Faulkner, it was obviously proper to receive evidence that she was an educated person, which at least imports that she could write her name. This evidence had a clear tendency to show that she did not execute the paper at all, as, had she done so, the subscription would have been by her own and not by the hand of another with her mark attached.

We are unable to see that the fact Espalla did not seek to sell the land nor to exercise any ownership over it “after he was informed that there was something wrong about the transaction between Faulkner and himself” (as Ms counsel put it) has any tendency to show his innocence of the charge of forging the deed, or of uttering a false deed with intent to defraud, This fact was in the nature of subsequent exculpatory conduct — if indeed it can be said even in the abstract to indicate innocence rather than guilt; and was well excluded : a defendant after being charged with the crime cannot thus manufacture evidence for himself.

The fact that the witness Glennon “frequently represented parties in transactions with real estate when he did not know the parties, and in which the parties did not know each other personally,” was wholly irrelevant, and beingso the court, of course, did not err in excluding it ex mero motu.

In its instruction to the jury referring to the certified copy of the alleged forged instrument, that ‘ ‘the deed in evidence is a legal deed,” the court-manifestly had reference to the formalities required in the preparation and execution of the paper — its contents, and signature, and attestation or acknowledgment — that on its face it carried the legal title to the property described in it. Whether the court erred in this or not we cannot say, since the deed is not set out in the bill of exceptions. All that- appears therein in relation to this paper, however, goes to show that prima facie it was a formal conveyance of .the land described in it. And whether or not the paper was a deed, made the subject of forgery by the statute under which this defendant was indicted", was purely a question for the court.

The law is, as charged by the court, that the presenting for record at the probate office of a forged deed is the uttering thereof. — -8 Am. & Eng. Ency. of Law, p. 492. The charges requested by the defendant, being the general affirmative charge in several forms and the general charge that there could be no conviction of forgery under this indictment, are so patently unsound and improper when referred' to the evidence that we deem it unnecessary to discuss them. For the same reason we have pretermitted all reference to several exceptions reserved by the defendant to the rulings of the court on the competency of evidence, and might have thus dismissed some of those about which we have written. We find no error in the record, and the judgment of the City Court must be

Affirmed.