| Ala. | Jan 15, 1875
The appellant was indicted in the court below, under section 3643 of the Revised Code, for “ countersigning a paper partly written and partly printed, issued without authority of law, for the purposes of money, or for general circulation.”
The indictment purports to set forth a copy of the paper, charged to have been illegally countersigned by the defendant. Evidence was introduced to show the loss of the original, from which the copy was made, and that on diligent search it could not be found. The court then permitted the counsel for the State, against the objection of the defendant, to read in evidence to the jury an exammed copy of the lost paper, without such proof of the execution of the original as would have authorized its introduction.
Where the admission of evidence to the jury depends upon the proof of some fact as a foundation, such fact must be shown to the court. Paysant v. Ware & Barringer, 1 Ala. 161. But if the genuineness of an instrument of writing is the fact
We do not think it clearly appears from an examination of the subsequent proceedings appearing of record, that the error of the admission in evidence of the copy of the instrument was error without injury.
The first and second charges requested by the defendant were, we think, properly refused by the court.
The first was too restrictive in its character, as to the mode of proof of the execution of the instrument in question. The charge required the evidence of an eye-witness to the signature of defendant, or proof that he had admitted the signature to be his, or proof that the signature was in defendant’s handwriting. We can readily conceive that circumstances, other than those mentioned in the charge, might be sufficient, if proved, to authorize a jury to come to the conclusion that the paper had been countersigned by the defendant.
The latter portion of the second charge requested and refused made the charge, as a whole, improper to be given. It asked the jury to be instructed as follows: “ That if the evidence leaves it doubtful whether such paper was issued for the purposes of money, or merely for the saving of time and expense, or for the convenience of the Tallassee Manufacturing Company, in settling with its operatives and employees, the jury must acquit the defendant.”
If this charge had been given, its tendency would have been to withdraw from the jury the consideration of the question as to whether the paper was emitted “for general circulation.” The statute makes this a separate and distinct offence, from that of emitting such paper “ to answer the purposes of money.” Rev. Code, § 3643. Furthermore, the paper might have been issued “ for the saving of time and expense, and for the convenience of the Tallassee Manufacturing Company, in settling with their operatives and employees, and still be obnoxious to the prohibition of the statute.
The remarks of the court, in its charge to the jury, relative to the action of the general assembly of the State at its recent session, on the subject of emitting change bills, were foreign to the issue on trial, and having been erroneous, we cannot clearly see that they did not operate to the injury of the defendant.
We deem it unnecessary to notice any other question presented by the record; but for the errors we have pointed out, the judgment must be reversed, and the cause remanded.