1. The writing, if genuine, was not an authority for the sale of a bedstead, or of any other article than a bureau; yet, the sale and delivery of the bedstead and the bureau, and the presentment of the writing were in point of time coincident, forming parts of the same transaction. It may be, the fact of the sale of the bedstead was unessential and unimportant; but it would have been difficult, in a narration of the fact of the presentment of the writing, and of the use to which it was applied by the defendant, to avoid reference to it. "We can see no reason for separating the transaction into parts, admitting some in evidence, and excluding others. If, through the medium of the writing, the defendant obtained credit for the bedstead, the fact could properly be shown as indicative of the motives for its false making. As a general rule, it is not permissible, on a trial for one offense, to prove that the accused has committed another and different offense; but if the two form parts of the res gestee, the one is not excluded as extraneous — it may be important as indicative of notice or of the seienter.—Gassenheimer v. State, 52 Ala. 313.
2. The motion in arrest of judgment, and the first instruction given the jury involve substantially the same and the main question in the case; which is, whether the writing is not void, without legal efficacy, and incapable of being the subject of forgery. The point of contention is, that it is fatally uncertain ; that the price or cost of the bureau is not stated, nor is the time or manner of payment, and, of consequence, that it could not become the basis of a valid contract. A writing, void on its face because of the want of legal requisites to its validity, is not the snbject of an indictment for forgery, in consequence of its incapacity to effect fraud. Illustrations are an unattested will of lands, and a conveyance of lands by a married woman, not purporting to be executed as the law may appoint. And a writing, so imperfect and obscure that it is unintelligible without reference to extrinsic facts, will not support an indictment for forgery, unless these facts are averred, and by the averment it is made apparent that it has the capacity of effecting fraud.—Rembert v. State, 53 Ala. 467. But it is quite an error to suppose that a writing like that set out in the indictment is invalid for the want of legal requisites, or that it is so imperfect and obscure, that, without reference to extrinsic facts, it is unintelligible. The law has not prescribed for it a particular mode of execution, nor declared its requisites. In form, substance, and legal effect, it is a proposition to pay the person to whom it is addressed, in weekly installments, the price or cost of a cheap bureau, which the person designated may purchase. It is an authority to that person to purchase, to agree upon the price, and to fix the installments in which it *6is payable. The limitation upon the authority is, that the bureau must be in price and value, cheap ; that is, common as compared with others of greater value, and the price is not to be payable presently, or in a gross sum in the future, but in weekly installments, the sura of each- installment having a reasonable correspondence to the price. When acted upon by the person to whom it was addressed ; when the proposition was accepted, and there was a sale of a bureau, if there was not a plain departure from tile limitations of the authority, the writer would become immediately liable — a debt would be created, his own debt, and not the debt of another. Similar writings are used daily in the transaction of business, have often been the subject of controversy, and their legal validity and operation, as creating direct engagements upon the part of the promisor, can not be doubted or questioned, though the sum payable, or the time of payment may not be expressed ; these are determinable and rendered certain by the act of the person authorized to deal on the credit of the promisor.—Bates v. Starr, 6 Ala. 697 ; Oliver v. Hire, 14 Ala. 590; Scott v. Myatt, 24 Ala. 489 ; Sanford v. Howard, 29 Ala. 684. The writing is of apparent legal efficacy; if genuine, it would answer the purpose of its creation — enabling the person designated to buy a cheap bureau on the credit of the writer or person signing it, from the person to whom it is addressed. Having these qualities, it has the capacity for the perpetration of fraud, and is the subject of forgery. It was not necessary to aver in the indictment that the fraud was consummated. iThe offense was complete by the false making of the writing, without the concurrence of damage or injury.—Jones v. State, 50 Ala. 161.
3. Recalling and re-examining a witness in the course of a trial at law, civil or criminal, is a matter resting in the sound discretion of the primary court, and its action is not revisable on error.
4. The second instruction given by the court is free from error. The possesUon and use of the means or instruments of crime is always an important fact, which, if unexplained, raises unfavorable presumptions. One found in the possession of a forged instrument of which he purports to be the beneficiary, and applying it to his own uses, must, in the absence of explanation, be presumed to have fabricated it, or to have been privy to its fabrication. It is difficult to conceive that he could have' the possession unless he had fabricated it, or assented to its fabrication ; and the presumption grows stronger, when he uses or attempts to use it.—State v. Britt. 3 Dev. 122.
5. It was the duty of the court to affix the punishment following conviction, which must have been either imprisonment *7in the penitentiary, or hard labor for the county, for a term of not less than two, and not exceeding ten years. — Code of 1876, § 4342. A term of two years having been fixed upon, the court could elect whether it should be hard labor for the county, or imprisonment in the penitentiary. The law confides the discretion to the court.' — Code of 1876 §4450. Imposing hard labor for the county, the court properly imposed additional hard labor for the county for a term sufficient to cover all costs and officers’ fees, etc. — Pam. Acts, 1880-81, p. 37; Code of 1876, § 4731.
We find no error in the record, and the judgment must be affirmed.
AI-generated responses must be verified and are not legal advice.
