Howard v. State

Dec 14, 1920

6 Div. 701.

Reporters:: , ,
Before:: Bricken

BRICKEN, P. J.

This appeal is on the record proper, there being no bill of exceptions. The defendant was indicted, tried, and convicted for thе offense of forgery in the second degree, and was given an indetеrminate sentence in the penitentiary of not less than two years nоr more than five years.

[1] It is first insisted that the indictment is not sufficient upon which to predicate the judgment of conviction, in that it fails to aver or chаrge who the defendant intended to injure or defraud. Pretermitting the fact that no objection by demurrer or otherwise was interposed to the indictment in the court below, it is sufficient to say here that there would have been some merit in this contention under the common law, for at commоn law it was necessary ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍particularly to name .the person intended to be defrauded; and, without this allegation, the indictment would have beеn fatally defective. However, this rule has been changed by statute, so that now, when, to sustain an indictment, “an intent to injure or defraud is necessary,” a general averment of the intent, without naming the particular pеrson, corporation, or government intended to be defrauded, is sufficient. Code 1907, § 7146; Jones v. State, 50 Ala. 161; Horton v. State, 53 Ala. 488-493; Lee v. State, 118 Ala. 672, 23 South. 669; Headley v. State, 106 Ala. 109, 17 South. 714; Denson v. State, 122 Ala. 100, 26 South. 119.

[2] There is no merit in the contention that the indiсtment charges forgery in the first degree. It clearly charges forgery in’ the second degree, and was framed under section 6910 of the Code 1907. The term “bill of exchange” includes a check. In the case of First National Bank v. Nelson, 105 Ala. 180, 193, 16 South. 707, 708, the Supreme Court used the following language:

“It -is noticeable that the words ‘bill’ and ‘bill of exchange’ аre used interchangeably in the several sections as meaning onе and the same thing-; and that the words ‘bill of exchange’ include a cheсk. * * * So ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍far as our investigations have gone we have not seen a case ■construing a statute in which the words ‘bill,’ or ‘bill of exchange,’ occur,-where the question arose, in which they were not held to embrace a check.”

[3,4] The next contention is that:

“The alleged verdict in this case is not a propеr verdict, because it is not signed by any member of the jury who tried the apрellant as foreman.”

In the first place this insistence is not borne out by the record, ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍the judgment entry as far as relates to this question being:

“ * * * Thereuрon came a jury of good and lawful men, to wit, O. A. Buff and eleven others, whо, being impanelled and sworn according to law, upon their oaths dо say: ‘We, the jury, find the defendant guilty, as charged in the indictment.’ ”

This recital in the minute entry is sufficient ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍in every particular. Anderson v. State, 65 Ala. 553. Appellant’s-cоunsel cite no authority, but insist that in order to add validity to the verdict of the jury it should be in writing, and signed by some member of the jury as foreman. The fact that therе is no merit in this contention needs no discussion. A jury may announce their verdict to the court ore tenus, and the fact that the verdict is returned in writing by the jury to the court adds nothing to its validity. Underwood v. State, 2 Ala. 744; Robinson v. State, 54 Ala. 86; Stevens et al. v. State, 133 Ala. 28, 36, 32 South. 270, 272. In the Stevens Case supra the court said:

“It is not essential to a vеrdict that it should be written; the jury may announce it to the court ore tenus оr upon paper, at their pleasure; and, however rendered, upon the suggestion of the judge, it may ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍be varied by the jury in its terms, so as to makе it speak their intentions. And the change thus made in the finding need not be notеd in writing, even if it be such as to entirely supersede the verdict.”

See, also, Gary et al. v. Woodham et al., 103 Ala. 421, 426, 15 South. 840, 841. In this case it was said:

“We gather frоm the bill of exceptions that the verdict was originally returned ore tenus by the jury to the court. This was sufficient. * * * And the action of the court, upon its bеing found that no written verdict was in the file, in having the jury, which was still in at *630 tendance, return a written verdict was superfluous, and obviously not vitiating.”

The record is free from error, and the judgment of conviction is affirmed.

Affirmed.