Jones v. State

50 Ala. 161 | Ala. | 1874

BRICKELL, J.

The Code does not furnish a form of indictment for the offence of forging an instrument in writing. It is permissible, when such form is not furnished, to pursue a form analogous to those prescribed. R. C. § 4141. The form adopted in this case is analogous to the precedents furnished, and in ordinary and concise language states the offence charged, so that the accused. can fully understand what it is he is required to answer, and on conviction the court would readily perceive the judgment the law required to be pronounced. It was not necessary to resort to the common-law form of indictment, though, if that had been pursued, it would have been sufficient. At common law, it was necessary particularly to name the person intended to be defrauded; and without this allegation, the indictment would have been fatally defective. The statute has changed this rule of the common law; and now, when to sustain an indictment, “ an intent to injure or defraud is necessary,” a general averment’of the intent, “ without naming the particular person, corporation, or government intended to be injured or defrauded,” is sufficient. R. C. § 4126. There was no error in overruling the demurrer to the indictment.

2. Falsely making any writing, with a fraudulent intent, whereby another may be prejudiced, is forgery. It is not necessary that any prejudice should in fact have happened by reason of the fraud. The capacity of the false and fraudulent writing to work injury, is the material question. If the writing has that capacity, the offence is committed. We cannot doubt that the forgery of a writing, purporting to be an order or request from a son to a father, for money, is criminal and punishable. It .may be that the payment of the money by the parent, on the order, if genuine, would be gratuitous, a mere matter of affection and favor; yet it is as criminal, morally and legally, to cheat and defraud him, by practising on his affection for or favor to a child, as by the pretence that he was being discharged from a legal liability, or acquiring a legal right. If the order had purported to be drawn by one having funds in the hands of the father subject to draft, it cannot be doubted that falsely and fraudulently making such order would have been forgery. Or, if it had purported to be drawn on him, by one who would have become his debtor on its payment, forgery of it could have been committed. We cannot doubt that it is equally forgery to draw an order on a parent in the name of a child. The prejudice the parent would sustain, by being cheated and deceived into its payment, in the belief that he was responding to’ the request of a child, is of the same kind and degree with that which he would sustain' by being defrauded into parting with his money, on the faith of a false instrument, he regarded as a security for his reimbursement. Roscoe’s Cr. Ev. 488-491-496, 525.

The special pleas in bar interposed by the defendant, presented no matter of which the general issue would not have afforded him full advantage, are rather novelties in criminal practice, and should by the court have been stricken out on motion, as nullities. The court committed no error prejudicial to the appellant in sustaining a demurrer to. them.

The judgment is affirmed.