Hurst v. State, 56 So. 18

Hurst v. State

56 So. 18 | Ala. Ct. App. | 1911

WALKER, P. J.

The court overruled an objection made by the defendant to the introduction in evidence of a written instrument which corresponded in all re*237spects with the instrument set out in the several counts of the indictment, except that the word “canceled” was written across the face of the instrument offered. This paper was offered after proof had been introduced tending to show that the signature to it was a forgery. The grounds of the objection were that the evidence offered was incompetent, immaterial, and irrelevant, and that the defendant was not shown to have any connection with the signing of the name to the instrument or to have executed the same.

The ground now urged in support of the exception reserved to this ruling is that proof of defendant’s connection with the instrument should have been required before permitting the introduction of the paper in evidence. Clearly the paper became proper evidence in the case when considered with the evidence subsequently introduced tending to show the defendant’s connection with it and that the word “canceled,” was written upon the paper after it passed from his possession.—Lampkin’s Case, 105 Ala. 1, 16 South. 575. “It is of no consequence in what order the evidence is introduced, as far as its ultimate legitimacy is concerned, provided, in its relation to the other evidence in the case, it is at the end pertinent to the issue.” — Jones on Evidence, § 812.

In connection with the evidence tending to show the forgery and uttering by the defendant of a cotton receipt, filled out on a form abstracted from a stubbook in use by Robinson Bros., whose signature was alleged to have been forged, it was proper to admit proof of the use of such stub-book by that firm in the issuance of cotton receipts, that the number on the receipt which evidence tended to show was filled out by and was in the possession of the defendant was the number missing from the stub-book, and that the stub, as well as the cor*238responding form, of receipt, was abstracted from the book. The proof offered in that connection was pertinent to the inquiry as to the legitimacy of the origin of the instrument in question, and there was no error in its admission.

The defendant as a witness in bis own behalf having testified that be went to the place of business of Robinson Bros, after the date of the alleged forging and uttering of the cotton receipt and before bis arrest, be was asked by bis counsel if be went there voluntarily. The defendant excepted to the action of the court in sustaining the objection of the solicitor to this question. There was no merit in this exception. The defendant could not by his subsequent act make evidence for himself.— Brown v. State, 150 Ala. 25, 43 South. 194. Proof as to how the defendant happened to go to that place before his arrest was not in rebuttal of any evidence offered by the state, and was not pertinent to any issue in the case. Whether the question was otherwise objectionable need not be considered.

In the course of his examination as a witness in bis own behalf, the defendant stated that be went to Selma that day, referring to the -day mentioned in the incriminating evidence offered by the state. The prosecution bad not introduced any evidence tending to show that the defendant went to Selma or elsewhere. In that connection the defendant’s counsel asked him, “What day did you come back from Selma?” The defendant excepted to the action of the court in sustaining an objection of the solicitor to this question. It is now urged that the question Avas permissible as calling for proof Which might tend to explain other proof which Avas susceptible of being used to support an inference that defendant’s going to Selma amounted to a flight. Conceding that the evidence called for might have been ap*239propriate to rebut evidence of flight if the state had introduced such evidence, yet it is plain that the defendant was not entitled to rebut evidence offered by himself. The prosecution did not undertake to prove that the defendant fled. The defendant could not set up a man of straw, and complain that he was not allowed to explain it away. If the evidence., called for by the question might have been explanatory of anything, it was of a fact put in evidence by defendant himself. The court did not err in sustaining the objection to the question. This is another instance of a party undertaking to make evidence for himself.

It was proper to permit the state to prove that the word “canceled” was wTritten on the cotton receipt after it passed from the possession of the defendant. That word did not appear upon the instrument as set out in the several counts of the indictment. In order to show the commission of the offense as charged, it was proper to admit proof to show that, after the paper was recovered by the party whose signature was claimed to have been forged, the word “canceled” was written upon it to prevent the possibility of the further use of the paper as genuine, and that the defendant’s connection with the paper was before it was thus mutilated or changed.—Thompson v. State, 30 Ala. 28.

Evidence was admitted which tended to show that the defendant forged and attempted to use or pass a cotton receipt, as alleged in the indictment. The 'intent to injure or defraud, which the statute (Code 1907, § 6910), makes an essential ingredient of the offense charged, may be inferred from such acts in relation to a spurious instrument having the capacity to defraud.—Denson v. State, 122 Ala. 100, 26 South. 119; Jones v. State, 50 Ala. 161; Curtis v. State, 118 Ala. 125, 21 South. 111. It follows from the conclusion just stated that the trial *240court was not in error in refusing the first, second, third, and fifth charges requested by the defendant.

The statute (Code 1907, § 6910) does not require .that the intent to injure or defraud, which must accompany the apt, must be directed against the person purporting to be the maker of the instrument; and a charge of forgery of a cotton receipt, an instrument named in the statute, does not require for its support proof that the instrument was of any value. A statement of these propositions suffices to show that the fourth, sixth, seventh, eigth, and ninth charges refused to the defendant each involved a statement which the defendant was not entitled to require the court to malte to the jury.

Affirmed.