87 Ala. 36 | Ala. | 1888
It is well established that an indictment which merely sets out a writing, on which the forgery charged is predicated, wanting in the legal requisites to its validity, or so imperfect or incomplete that it can not be the foundation of a legal liability, and its real meaning and terms are not intelligible from the words and characters used, does not charge an offense. If the legal force of the writing, not being apparent on its face, arises from extrinsic facts, or, being incomplete or unintelligible, its meaning and capacity to effect a fraud are derived from extrinsic facts, such facts must be averred with certainty to make judicially apparent that the instrument is the subject of forgery. — Rembert v. State, 53 Ala. 467; Hobbs v. State, 75 Ala. 1.
The instrument, for forging which the defendant was convicted, is set forth in the indictment in hcec verba. On its face, so far as it can be deciphered, it does not purport to create a pecuniary liability on another, nor does it show that another might be injured by it. It is not apparent, that, if genuine, it would operate as the basis of another person’s liability. It is uncertain, and some of the words and characters used are so obscure and unintelligible, that its meaning and vicious capacity can not be ascertained from the writing as set forth in the indictment, nor what effect, if any, it should have. In such case, the extrinsic facts connected with a forged instrument, should be averred, so that the court may see its capacity to create a liability, or to effect a fraud. No extrinsic facts are averred, which show or tend to show its vicious capacity, nor is its apparent obscurity explained or removed by inuendo or otherwise. The demurrer to the indictment should have been sustained.
Reversed and remanded.
