4 Div. 139. | Ala. Ct. App. | Nov 24, 1925
The case as made by the state's evidence discloses: Folmar Sons were the general agents of a life insurance company and had their place of business at Troy, Pike county. They made all collections of premiums for policies issued and delivered, and became liable to the company for its part of premiums upon policies delivered. Defendant lived in Barbour county, and was a subagent of Folmar Sons, and under contract with them to solicit insurance and to take applications therefor, to be sent to Folmar Sons, who in turn forwarded same to the company and procured the issuance of the policies called for in application. These policies, when returned, were turned over to defendant for delivery to the insured, at which time payment of the first premium was made. Of this first premium defendant was entitled to 60 per cent. This *340 first premium was rarely paid in money, and defendant was allowed to take notes therefor, payable to Folmar Sons, the payment being guaranteed in each instance by defendant. These notes were held by Folmar Sons as collateral security for such advances in money as was made to defendant and also to secure defendant's guarantee on all notes taken by him. During the period of this contract defendant delivered many policies, and for same secured and delivered notes payable to Folmar Sons, to be held as aforesaid, 60 per cent. of which when collected to be credited to the account of defendant against his indebtedness. The account and dealings between the parties covered many items and a considerable period of time. Under the foregoing arrangement a policy of insurance on the life of R. V. Fuqua was issued and turned over to defendant to be by him delivered and collected for. Shortly thereafter there was delivered to Folmar Sons a note and mortgage, purporting to have been signed by R. V. Fuqua and witnessed by defendant, for the amount of the first premium, to wit, $147, which note and mortgage went into the account of defendant with Folmar Sons, as a basis for further advances to be made by Folmar Sons to defendant, on the business written and delivered. The policy for which this note and mortgage was given was delivered to defendant and has never been returned to Folmar Sons. Upon demand being made on Fuqua for payment of the note and mortgage, he denied its execution and claimed that his name had been forged thereto.
There was much testimony and many exceptions with reference to how the note and mortgage was delivered to Folmar Sons, whether by mail or otherwise. That the note and mortgage was delivered to Folmar Sons, accompanied by a letter written by defendant and referring to this particular note and mortgage, is not disputed, and that upon its receipt Folmar Sons accepted it as genuine and dealt with it in defendant's account, as such. In this evidence was sought to be raised the question of venue, i. e., that the offense of uttering, charged in the second count of the indictment, was committed, if at all, in Pike county, and not in Barbour. However the evidence may be considered, it presents a crime begun in one county and consummated in another, thereby placing the venue in either county. Code 1923, § 4894. Hence the various rulings of the trial court relative to the receipt of the forged paper through the mail, while technically erroneous, could not have injuriously affected the defendant's rights on this trial.
There was evidence supporting the charge both of forgery and of uttering a forged instrument. Charges asking affirmative instructions were properly refused.
The refused charge not numbered, which for convenience we mark 2, was properly refused, for that it ignores the evidence as applicable to the second count of the indictment.
The record of the indictment as it appears in the transcript shows a proper indorsement by the clerk. The record imports verity.
Confessions and admissions of defendant implying guilt, when shown to have been made voluntarily, are admissible in evidence, and while the confessions in this case were admitted before proof of its voluntary nature, the witness immediately supplied the omission, thereby curing the error.
Whatever error may have been committed by the court in admitting testimony of the agency of Lightfoot could not have affected defendant's cause one way or another. Lightfoot did nothing, took no part in the transactions, and was not a witness in the case.
The state offered extracts from a letter written by defendant to Folmar Sons, relative to the note claimed here to have been forged, which letter was then present in court and in the hands of the witness. Objection was made on the ground that the whole letter was not offered. The letter was equally open to the defense as to the state, and if there were other parts of the letter bearing on the question at issue and favorable to defendant, defendant should have offered them. In that case, if the court had refused to permit defendant to have the benefit of such evidence, a question would here be presented affecting the rights of defendant on this trial. As here presented, it would appear that defendant was more interested in the exception than in the contents of the letter. Webb v. State,
It was relevant to show by Boyd, the manager of Folmar Sons, that this alleged forged note and mortgage purported to have been given for an insurance premium, and that Folmar Son acting, as was the agreement between all parties, sent to the company its part of the premium so secured.
Boyd and Folmar having qualified as being familiar with the handwriting of defendant, it was competent for them to testify that the letter accompanying the forged note was in the handwriting of defendant.
The statement purporting to be a statement of account between Folmar Sons and defendant, dated June 19, 1922, is not identified as having been made and sent by Folmar Sons to defendant, and hence was properly excluded.
The argument of the solicitor to the jury was justified by the evidence.
The motion for a new trial was properly overruled.
We find no error in the record, and the judgment is affirmed.
Affirmed *341