Lampkin v. State, 105 Ala. 1

105 Ala. 1 | Ala. | 1894

BBICKELL, G. J.

— The indictment is not subject to the demurrer which was interposed, nor is it in any respect defective. The instrument it describes, or rather sets out in substance, taken in connection with the extrinsic facts which are averred to render it intelligible, and the person to whom it was addressed certain, is an order or request for the payment of money, whereby a pecuniary demand is, or purports to be, created, and the making of it falsely, with the intent to defraud, is forgery in the second degree. — Cr.Code,§ 3852; Jones v. State, 50 Ala. 161; Rembert v. State, 53 Ala. 467; Horton v. State, Ib. 488; Allen v. State, 74 Ala. 557; Hobbs v. State, 75 Ala. 1.

The objection to.the introduction in evidence of the writing alleged to have been forged is general and undefined, and we are at a loss to ascertain any reasonable ground upon which it may have been intended to rest it. The writing in all respects corresponded to the writing set out in the several counts of the indictment; there is not the least variance between them. It is immaterial that the name of the drawer forms part of the body of the writing, instead of being written at its foot. The name of the drawer or maker of a note, bill, or of an order for the payment of money, may appear in any part of the writing.; it is sufficient that he sign in the capacity of maker or'drawer. — 1 Dan. Neg. Ins., § 74. The allegation of the indictment that the meaning of the writing was “signed John Driver,” was perhaps unnecessary, but as matter of fact and of law, it was proven by the writing given in evidence.

There is no error in the refusal of the instruction requested by the defendant. The construction of the writing alleged to have been forged, whether if genuine it would have created a liability upon the drawer or maker, was a question of law, it was the exclusive province and duty of the court to decide. Instructions referring to the jury questions of law, or the construction of written instruments, should always be refused. — 1 Brick Dig. 337, §§ 25, 27.

We find no error in the record, and the judgment must be affirmed,