Williams v. State
61 Ala. 33
Ala.
1878
Check Treatment
BBICKELL, C. J.

1. The common law required that every indictment should be found by a grand jury, twelve of whom at least must have been of the county in which the offense was committed, freemen, and lawful leige subjects. It was not required that they should be selected from that part of the county, in which the defendant dwelt, or from that part in which the guilty act was done — nor were these excluded. The law was satisfied, when they were returned from the vicinage, which comprehended the county. The constitution declares “that no person shall for any indictable offense, be proceeded against criminally by information,” &c., excepting particular cases, Avithin which the present does not fall. This is unquestionably a constitutional guaranty against prosecution otherwise than on the presentment of a grand jury. For an indictment is at the common law, and under statutes existing prior to and at the adoption of the constitution, defined as an accusation in writing, returned into court on the oath of the grand jury of the county, charging a person Avith an indictable offense. But there is no restraint or limitation on legislative power in declaring *39tlie mode in which the jurors shall be drawn or summoned; or which inhibits the consultation of public convenience, in determining whether the jurors shall be selected from the body of the county at large, or from a particular vicinage. The ninth section of the act establishing the Court of Quarter Sessions for Perry County requiring that the grand jurors for the November term of the court shall be drawn from the immediate vicinity in which the court was held, is not violative of the lettei', spirit, or purposes of the constitution. Sanders v. State, 55 Ala. 183.

2. That the instrument charged to have been forged is the subject of forgery, and is an order for money, and was properly so described in the indictment, is too clear for controversy. It is a written demand or direction addressed to a particular person for the payment to another of a certain sum of money, purporting to be signed or drawn by one who thereby professes to have the right to draw it. Such a writing the authorities have settled is an order for the payment of money within the meaning of kindred statutes. Bishop Stat. Crimes, §§ 327, 331. It may be the order was drawn so unskilfully that it would not have imposed upon or defrauded Cohen to whom it is addressed. It is the evil intent to defraud — that the instrument forged shall be used as genuine, and not the capacity in faet of the instrument to accomplish the intent, which the law regards. Fraud may not be perpetrated; no benefit may be derived from the instrument ; yet, if there is the evil intent, consummated by the false making, and it is not a legal impossibility, from the want of legal capacity apparent on the face of the instrument, to deceive and defraud, the crime is committed. — 2 Bish. Cr. Law, §§ 596, 603.

3. The statute declares that when an intent to injure or defraud is an ingredient of an offense, the indictment may aver it generally. — Code of 1876, § 4799.

4. Upon the question, whether the witness Lewis, who confessed having written the forged instrument at the request and under the direction of the appellant, should have been permitted to write in the presence of the court and jury a similar instrument, that the jury might institute a comparison between the instruments, we think the court below erred. The rule which has prevailed in this State, borrowed from the English courts, is, that proven specimens of handwriting, can not be received for the .purposes of comparison with a disputed instrument. The only recognized exception, if it can be termed an exception, is when other papers pertinent *40to the issue on trial are properly in evidence, the jury may under the instructions of the court institute a comparison. Little v. Beasley, 2 Ala. 703; State v. Givens, 5 Ala. 747; Bishop v. State, 30 Ala. 34; Kirksey v. Kirksey, 41 Ala. 626. The rule proceeds not only on the ground, that if it were otherwise, the issues before the jury could be indefinitely multiplied, and their attention distracted from the real matter in controversy, involving unreasonable embarrassment and delay in the administration of justice, but upon the broader ground of preventing fraud, which could be easily perpetrated in the selection of spurious, or prepared instruments for the purposes of comparison. When a comparison of writings is permitted, specimens prepared for the occasion are excluded. — 1 Whart. Ev. § 715. In King v. Donahue, 110 Mass. 155, it was held, a party to an action, could not in the presence of the jury write his signature for the purpose of having it compared with the disputed signature. The rule in reference to proving handwriting, is, that the witness must not have derived his knowledge, from papers prepared for his instruction with a .view to his testifying in the particular case. — 1 Whart. Ev. § 707. Lord Kenyon, in Stranger v. Searle, 1 Esp. 14, gave as a reason for the exclusion of the evidence, that “ the party might write differently from his common mode of writing his name, through design.” And in Doe v. Suckermore, 5 Ad. & El. 705, it was said by Cole RIDGE, J., speaking of evidence of handwriting : “ The test of genuineness ought to be the resemblance, not to the formation of letters in some other specimen or specimens, but to the general character of writing, which is impressed on it, as the involuntary and unconscious result of constitution, habit or other permanent cause, and is therefore of itself permanent. And we best acquire a knowledge of this character, by seeing the individual write at times when his manner of writing is not in question, or by engaging with him in correspondence; cither supposition giving reason to believe that he writes at the time, not constrainedly, but in his natural manner.” There are cases in which a witness denies his signature, and may on cross-examination be compelled in the presence of the court to write his name for the purposes of comparison. This may fall within the latitude of a cross-examination, and whenever permitted, of that examination, the signature so written becomes a part. But it would open too wide a door for fraud, if a witness was allowed to corroborate his own testimony, by a preparation of specimens of his writing for the purposes of comparison. By design a corres*41ponclence with, or a departure from the disputed writing could be fabricated; and whether there was such design, is an inquiry with which the jury should not be embarrassed.

This error compels a reversal of the judgment of conviction, and it is not necessary to prolong this opinion by a decision of the other questions presented. The judgment is reversed and the cause remanded. The prisoner will remain in custody until discharged by due course of law.