45 Ala. 26 | Ala. | 1871
This indictment is based on section 3715 of the Revised Code. It is a prosecution in the nature of a proceeding on a charge of forgery. No form, for such an offense, is to be found in the schedule of forms given in the appendix of the Code. Such an indictment should state the facts constituting the offense in ordinary and concise language. — Rev. Code, §§ 4112,4126,3715. This particularity is required in order to protect the defendant against the jeopardy of a second trial for the same offense. Const. Ala. 1867, article 1, § 11; 1 Bish. Cr. Proc. §§ 268, 269. “ Precision in the description of the offense is of the last importance to the innocent; for it is that which marks the limit of the accusation and fixes the proof of it. It is the only hold on .the jurors, judges as they are of the law and the fact, or on an insubordinate judge, who, confiding in his superior wisdom, refuses to conform to any general standard of decision, when his judgment can not be reached by writ of error.” — Gibson, C. J., arguendo, in Hartman v. Commonwealth, 5 Barr, 60, 68; Butler v. The State, 22 Ala. Rep. 43.
It has been uniformly required at common law, in framing indictments for forgery, to set’out the instrument forged in substance, or according to its tenor. Here there is no description of the instrument to which the signatures were falsely obtained, except by its name. Its date is not given, nor does it appear when, or where, or in what suit it was executed. It does not appear that it might not be wholly invalid. The instrument ought to be set out in the indictment, or so described that the court by inspection might pronounce whether it was such an obligation as might be the basis of the offense charged or not. — 2 Bish. Cr. Proc.
The court below erred in refusing to sustain the defendant’s demurrer. Eor this error, the cause is reversed and remanded for a new trial. In the mean time the defendant will be held in custody until discharged by due course of law.
