BRICKELL, C. J. —
The intent to deceive and defraud, and the capacity of the false instrument to consummate this intent, are the material ingredients of the offense of forgery. An instrument bearing the name, as maker, by which a person is known and called, uttered in the vicinity of his residence, has the capacity of deceiving and defrauding those who recognize him by that name. There was no error in receiving the evidence that the witness Thweatt was known and called by the name of Tlvreet, which was signed to the false instrument. The writing offered in evidence corresponded, in all essential respects, with that described in the first count of the indictment, and the objection to its introduction was properly overruled.
2. The charge requested was properly refused. The offense was complete, though the defendant did not write the instrument, if he procured another to write it, with the intent to publish and utter it, and did subsequently publish and utter it as genuine. — 3 Green. Ev. § 104.
3-4. The charge given by the court cannot be supported. It withdraws from the jury all consideration of the intent to defraud — a matter of inference from the facts before them, which it was their province to draw or reject. — 3 Green. Ev. § 103. It also excludes from their inquiry and determination the place of the commission of the offense, whether it was committed in Talladega county, or elsewhere. The fact *181would probably have been inferred by tbe jury from tbe evidence; but tbe court could not exclude it from tbeir inquiry, or assume it as proved. — Commonwealth v. Parmenter, 5 Pick. 279. It is well settled, by tbe decisions of tbis court, tbat a charge in a criminal case, which ignores a material 'fact, as a constituent of tbe prisoner’s guilt, or asserts tbat certain facts, not sufficient to make a prima facie case, will authorize a conviction, is erroneous, compelling a reversal, though it appears other instructions were given. — Corbett v. State, 31 Ala. 329" court="Ala." date_filed="1858-01-15" href="https://app.midpage.ai/document/corbett-v-state-6506129?utm_source=webapp" opinion_id="6506129">31 Ala. 329.
For tbis error, tbe judgment must be reversed, and tbe cause remanded. Tbe prisoner will remain in custody, until discharged by due course of law.