94 So. 262 | Ala. Ct. App. | 1922
Lead Opinion
The defendant was charged with forging the following instrument:
"Tuscaloosa, Ala., July 12th, 1920. "The First National Bank 61-70 of Tuscaloosa, Ala.
"Pay to the order of W.B. Lessley $2,901.60, twenty-nine hundred Won 60/100 Dollars. X X "Wit Bob Lila Casper. "W.B. Lessly."
The sole question presented for review upon the merits of the prosecution is whether the check above set out, being signed by mark and attested by the payee, who received the money, is the subject of forgery. This question was raised in the trial court by demurrer, objection to testimony, and by refused charges, and is fairly presented to this court.
To authorize an indictment for forgery the instrument must either appear on its face to be, or be in fact one which, if true, would possess some legal validity, or be legally capable of effecting a fraud (Dixon v. State,
The insistence is here made that, as the check is signed by mark and attested by defendant, who was the payee named in the check, on its face the signature was void and of no effect, and therefore not calculated to deceive. For the purposes of the law merchant a check is defined to be (Code 1907, §§ 5132, 5075) "an unconditional order in writing addressed by one person to another, signed by the person giving it." etc., and when the check is to circulate as a bill of exchange in the marts of trade, to be valid, if signed by mark by a person unable to write, it must be witnessed as required by statute (Flowers v. Bitting,
If then the order or check is not such instrument, as between the bank and its depositor is required by statute to be signed in order to bind the depositor and protect *659
the back in the payment of the depositor's money, the check or order is the subject of forgery. Bickley v. Keenan Co.,
The court did not err in its several rulings bearing on the foregoing questions.
We note, however, an error in the judgment, in that defendant was allowed bail in the sum of $5,000 pending appeal. The sentence of the law being that he be imprisoned in the penitentiary for more than five years, bail should not be allowed, and the sheriff of Tuscaloosa county is hereby ordered to at once take the defendant into his custody, and to so detain him until he may be delivered to the proper officials.
There is no reversible error in the record, and the judgment is affirmed.
Affirmed.
BRICKEN, P.J., dissents.
Dissenting Opinion
The appellant was convicted in the court below of the criminal offense of forgery in the second degree, and from the judgment of conviction pronounced against him he prosecutes his appeal to this court.
The indictment preferred against the defendant in the trial court charged him with the forgery of a certain alleged check, which is set out in the indictment, and which appears to be set out in hæc verba in the record before us on appeal.
The defendant demurred to the indictment, and by said demurrer challenged the apparent *660 validity of the instrument set out in the indictment as a check: First, because said alleged check did not purport to be signed by the makers thereof; second, because the signatures to said alleged check purported to be by mark, and the same did not purport to be witnessed; and, third, because the drawers of said alleged check could not write their names, and their signatures purported to be by mark, and said alleged check showed on its face that the only attesting witness to the signatures by mark of the alleged drawers of said check was the payee of said check. The trial court overruled said demurrers, and the defendant excepted.
The same legal questions were raised by the defendant upon his trial through appropriate objections to the introduction of said alleged check in evidence, and by motions to exclude the same from the consideration of the jury, and also by his request in writing for the general charge, first, to the indictment in its entirety, and, second, to the second count thereof.
Whether a written instrument alleged to be forged would create a legal liability is a question of law, and was therefore properly addressed for the judicial determination of the trial court. Lampkin v. State,
Section 6910, Code 1907, defines forgery in the second degree, and, under the Code, as the same has been repeatedly constructed by our Supreme Court and by this court, it is not every written instrument that may be the subject of forgery. Before there can be any forgery the instrument alleged to be forged must be such as, either upon its face, or by reason of attendant circumstances, appears to have the capacity to injure or defraud. It must be such an instrument which, if genuine,might apparently be of legal efficacy or the foundation of alegal liability. Such is the construction of the repeated decisions of our courts of last resort. Rembert v. State,
It must be conceded that a check, or any other written instrument, of apparent legal efficacy, and capable, upon its face of working injury, or possessing the power to defraud or of creating a legal liability, is the subject of forgery. This is true whether the instrument purports to be signed by the maker thereof in his own handwriting or by mark.
The demurrer filed to the indictment challenges the alleged check upon the ground that it does not purport to have been signed by the makers thereof by mark in form and manner as provided by section 1 of the Code of 1907.
It is first insisted by the state that the indictment was not subject to the demurrer interposed because said indictment is in Code form and the alleged check is set out in the indictment in hæc verba, and that the designation of the instrument as "a check" is immaterial. This insistence would be correct if the instrument itself was of apparent legal efficacy or effect, and not wanting in the capacity to work injury, or to defraud, or to create a legal liability; on the contrary, if the alleged instrument is without the characteristics specified, then the fact that it is set forth is its identical form and words in the indictment will not give the indictment the legal effect of charging the offense of forgery. The precise question was decided in the case of Fomby v. State,
"It is well established that an indictment which merely sets out a writing, on which the forgery charge is predicted,wanting in the legal requisites to its validity, or so imperfect or incomplete that it cannot be the foundation of a legal liability, and its real meaning and terms are not intelligible from the words and characters used, does not charge an offense."
Section 4720 of the Code of 1896, now incorporated in section 6910 of the Code of 1907, was construed by the Supreme Court, in the case of Burden v. State,
"The statute is not open to such interpretation, we think; and we reiterate, with respect to the present form of the provision what has been many times declared by this court: A writing to be the subject of forgery must either upon its face or by reason of attendant circumstances have, upon theassumption of its genuineness, a capacity to injure ordefraud."
In the case of Hobbs v. State,
"A writing, void on its face because of the want of legalrequisites to its validity, is not the subject of an indictment for forgery, in consequence of its incapacity to effect fraud. Illustrations are an unattested will of lands, and a conveyance of lands by a married woman, not purporting to be executed asthe law may appoint."
So then the fact that the alleged check is set out in the indictment does not give life to the indictment if said check was void on its face because not apparently signed by the makers thereof.
It is next insisted by the state that the names of the drawers of the check are not shown by said instrument to have been subscribed by mark. The suggestion is that the usual way for a person to sign a paper by mark is for a cross mark to be made, and the words "his mark" or "her mark" to be shown or written in connection with the cross mark. This contention of the state *661
is, we think, untenable. The instrument set out in the record clearly shows that a cross mark is placed just above the name "Bob," and also just above the name "Lila" of the signatures to the alleged check, and in so far as the manner of affixing the mark is concerned the method adopted was in the manner prescribed by the Code; that is, the cross mark in each instance was affixed near the written names of the purported signers of the alleged check. The absence of the words "his mark" and of "her mark" is, we think immaterial. The precise question was before the Supreme Court in the case of Harwell et al. v. Zimmerman,
It is finally insisted by the state that a check is not such a written instrument as requires a witness to its execution. There is no statute in this state that requires a check to be witnessed. There is a statute which defines a check, and under the statutory definition such instrument must be in writing,and must be signed by the maker thereof. This brings us to a consideration and decision of the real question in this case. The written instrument set out in the indictment is a check if it is anything. It is a check if it is not void. It is a check if it is not wanting in the legal requisites to its validity. If the instrument in question is void on its face because ofthe want of legal requisites to its validity, then it is not the subject of an indictment for forgery. Hobbs v. State, supra.
A check is a bill of exchange drawn on a bank and payable on demand. Code of Alabama 1907, § 5132.
A bill of exchange is an unconditional order in writing, addressed by one person to another, and signed by the person giving it, requiring the person to whom it is addressed to pay on demand, or at a fixed or determinable time, a certain sum of money to order or to bearer, Code of Alabama 1907, § 5075.
A check, therefore, as defined by the Code, is an unconditional order in writing drawn on a bank, payable on demand, and signed by the person giving it.
Section 1 of the Code of Alabama 1907 declares the meaning of certain words used in the Code. Among others are the words "signature" or "subscription," and as to these it is said:
" `Signature' or 'subscription' includes mark when the person cannot write, his name being written near it, and witnessed bya person who writes his own name as a witness."
The statutory definition of signature or subscription is limited to these words when used in the Code and to instruments or contracts which the Code, or some statute not incorporated in it, requires to be signed or subscribed by the maker, or makers, thereof. A check, under the Code, being an instrument in writing which the Code requires to be signed by the maker thereof, the statutory definition of signature or subscription, as used in the code, will apply to checks. Therefore, whenever a person who cannot write his name undertakes to draw a check, his name must be subscribed to the check by some person who can write, and the maker of the check must affix his mark near his, or her, written name, and the making of such mark must be witnessed by a person who can and does write his own name as a witness. Not only must the mark of the maker be affixed to the instrument, but it must be witnessed by a person who writes his own name as a witness. Both the mark and the witness thereto are essential to a valid signature by mark of persons who cannot write to all instruments which, under the Code of this state, must be in writing and signed by the maker thereof, and not acknowledged in the manner prescribed by law.
In the case of Bickley v. Keenan,
"The statutory provision we are considering does not negative expressly the validity of instruments signed or subscribed by mark, and not attested; yet, as it introduces a new rule in reference to subscriptions or signatures, we think it must be construed as implying a negative of the sufficiency of unattested signatures or subscriptions by mark, of all instruments falling within its purview. When a statute limits a thing to be done in a particular manner, it included in itself a negative; and the negative is, that it shall not bedone otherwise. The limitation exists, whenever the statute prescribes the particular manner in which the thing must be done."
We have seen that a writing, void on its face because of the want of legal requisites to its validity is not the subject of forgery. Hobbs v. State,
Were the signatures by mark to the alleged check in question of persons who could not write witnessed by a person who could write his own name as a witness, within the meaning intent, and purpose of section 1 of the Code? Was W.B. Lessley, the payee of the alleged check, a competent witness thereto so as apparently to make the signatures by mark of the alleged makers thereof their signatures in fact and in law? As supporting the contention that the signatures in question were of apparent legal efficacy, we are cited by the state to the cases of McGowan v. Collins,
In the case of Houston v. State,
"It was formerly unnecessary that mortgages of personal property should be in writing, and it has been expressly held in this state that written mortgages of personal property which were signed by the mortgagor making his mark, and attested by two witnesses making their mark, was sufficiently valid to enable the mortgagee to base his claim to the property conveyed therein."
Such was the law with reference to chattel mortgages until the act approved January 22, 1885, now incorporated in the Code of 1907 as section 4288, and which provides that "a mortgage of personal property is not valid unless made in writing and subscribed by the mortgagor." Since the time when the statute which required a chattel mortgage to be in writing and subscribed by the mortgagor went into effect, a mortgage of personal property by one who is unable to write his name is subscribed by the mortgagor —
"only when he has made his mark near his name subscribed for him, and this making of his mark has been witnessed by a person who can and does write 'his own name as a witness.' Without this attesting witness who writes his name as a witness, there can be no valid execution of the mortgage by such mortgagor."
We know of no statutory authority requiring a chattel mortgage to be witnessed in any case where the maker subscribes his own name thereto. It is only in cases where the maker of such an instrument as unable to write his name and his signature to such instrument is made by mark that a subscribing witness to the signature by mark is required.
In Penton v. Williams,
Whether or not the alleged check in question was apparently signed by Bob and Lila Casper, the alleged makers thereof, within the intent, meaning, and purpose of section 1 of the Code, depends upon the inquiry as to whether or not W.B. Lessley, the payee of said alleged check, was a competent witness thereto.
The case of Morris v. Bank of Attalla,
In the case of Coleman v. State,
"No party to an instrument is a competent attesting witnessto it, unless made so by statute; and this rule is not affected by the alteration of the former law made by section 3058 of the Code of 1876, which rendered parties and interested persons competent witnesses in certain cases."
It may be observed that in so far as the instant case is concerned, section 4007 of the Code of 1907 has not changed or enlarged the construction placed upon section 3058 of the Code of 1876, and it appears that this judicial construction, as announced in Coleman's Case, supra, has become firmly established in the rules of evidence and procedure that obtain in this state.
In the case of Seibold v. Rogers,
In the case of Barksdale v. Bullington,
"The attestation by one who does write his name is a part ifthe signature of the maker who cannot write, and signs by hismark. So *663
in Houston v. State,
In the case of Houston v. State,
"The very purpose of the statute in requiring that the making of a mark by the mortgagor in the execution of the mortgage should be attested by a witness who could write his name is to prevent injustice or fraud being committed, and is intended asa security against clandestine conveyances. It is for the protection of the one who executes the instrument."
If the payee of a check may be the attesting witness to the signature by mark of the maker of the check, where is the sense or reason for the requirement of the statute that the signature by mark of the maker shall be attested at all? To hold that the payee of such an instrument as is set out in the indictment in this case is a competent witness to the signatures by mark of the makers of the instrument would be to defeat and emasculate the requirement of the statute under consideration, and would be to ignore the repeated decisions to the effect that a party to an instrument is not a competent witness to it. The conclusion is irresistible that W.B. Lessley, the payee of the alleged check, was an incompetent witness thereto.
The Code requires that such an instrument as is set out in the indictment must be in writing, and must be subscribed by the maker. The makers in the instant case could not write their own names. They could only sign by mark, and the attestation of one who could and did write his name as a witness was a necessary and essential part of the signatures of the makers who purported to sign their names by mark. The payee of said instrument was incompetent to become an attesting witness to the signatures thereto, and the instrument must be treated as having no attested witness (Seibold v. Rogers, supra), and, having no attesting witness, there was no signature to said instrument. It was not apparently signed by the makers thereof, as required by section 1 of the Code, and does not purport to be so signed, and was void upon its face, and was wanting in the capacity to inflict injury or create a legal liability. Under our repeated decisions, said instrument, signed in manner and form as it purports to be signed, was not the subject of forgery. We, therefore, hold that the trial court erred: First, in overruling the defendant's demurrers to the indictment; second, in admitting said alleged check in evidence; and, third, in refusing the affirmative charge requested in writing by the defendant.
The trial court's attention is directed to the statute, Acts 1911, p. 113. Under the sentence pronounced by the court upon this defendant, it being a minimum of 6 years and a maximum of 10 years, that portion of the judgment entry which provides that defendant pending this appeal may enter into a bond of $5,000 is without authority of law. Under the terms of the statute supra, if the maximum sentence imposed exceeds 5 years, the defendant must be held in custody pending appeal. See, also a Rogers v. State,
The foregoing expresses the views of BRICKEN, P.J., who if of the opinion that for the errors pointed out the judgment appealed from should be reversed, and the cause remanded. The majority of the court, however, entertain different views, and have reached the conclusion, contra. SAMFORD, J. (for the majority) in an opinion affirms the judgment of the lower court. MERRITT, J., also expressed his views in an opinion in which he concurs in the conclusion reached by SAMFORD, J.
It follows therefore that the judgment appealed from must be affirmed, but from this conclusion BRICKEN, P.J., dissents.
Addendum
I concur in the conclusion reached by SAMFORD, J., but wish to place my concurrence in such conclusion on the ground that the check set out in the indictment is of apparent legal efficacy. An instrument cannot be said to be incapable of effecting fraud because by extraneous evidence it can be shown to be of no validity. Such instruments are nevertheless the subject of forgery.
So far as the check shows on its face, it was signed by the drawers, Bob and Lila Casper, by each writing their names, and the fact that there was an X mark over the name of "Bob" and "Lila Casper," without more, does not indicate that it was signed by mark, and to so establish this fact required evidence aliunde. If it be conceded that the X mark, without more, shows that Bob and Lila Casper signed the instrument by making their mark, then the check shows on its face that such signing was attested by a witness who could write his name. But it is contended that such attesting witness was as a matter of fact the payee named in the check, and as such could not be an attesting witness. Conceding then further that as a matter of law the payee could not be an attesting witness to the signature to the instrument drawn in his favour, yet it does not appear from the face of the check that the attesting witness is one and the same person, and extraneous evidence would be necessary to establish this fact. In fact the payee is "W.B. Lessley," while the attesting witness is "W.B. Lessly." But it may be contended that this reasoning is good, so far as the demurrers are concerned, but that the evidence shows that the drawers did sign by mark, and that the attesting witness is the same person named as payee in the check, and that on this account the check was improperly admitted in evidence.
A sufficient answer to this is that, while the evidence on the trial may show these to be the facts, yet all of these things did not appear on the face of the instrument, and that at the time of the alleged forgery this check as executed was calculated to deceive and perpetrate a fraud, and if all the evidence showed an instrument calculated to consummate a fraud, even though the instrument whereby the attempt was made should be shown by extraneous facts to be of no legal import, still the instrument under these facts is the subject of forgery. This would be true if the name signed was fictitious, or that a person to whom an order is addressed had no money or goods of the purported drawer in his possession. 19 Cyc. 1382; People v. McGlade,
I am conceding, without deciding, that where a check is signed by mark, it is necessary that there should be an attesting witness who can write his name.
Addendum
It having officially been made known to this court that this appellant has escaped from legal custody, and is now a fugitive from justice, the application for rehearing and the appeal is dismissed.