90 Ala. 649 | Ala. | 1891
Certain writings — a promissory note, or bill of exchange, for illustration — import on their face the creation of a pecuniary liability. So of many other written instruments, if they import legal validity. That’is, if the' writing shows on its face, without reference to extrinsic facts, that, if genuine, it creates, discharges, increases or diminishes a money liability, or transfers or incumbers property, or surrenders or impairs an existing valid claim to, or lien on property, then the false making of such written instrument, with intent to defraud, is, without more, forgery, and will justify a conviction of that grave offense. To fall within the rule, however, which dispenses with the averment of extrinsic facts, the writing itself must show that, if genuine, it affects some existing property right, or legal liability; for, otherwise, it fails to show its false making or utterance could defraud any one. There must be both the intention and power to defraud, or the legal offense is not committed. This principle rests on the soundest reason, and the highest authority.—Dixon v. State, 81 Ala. 61; 2 Bish. Cr. Law (7th Ed.), § 545.
The indictment in this case charges that Lewis, whose name it avers was forged, was the landlord of defendant, and, as such, had a lien on the crop grown on the rented premises, for any advances he had made to Jackson, or might make to him. The laiv creates the lien, if the relation of landlord and tenant existed, and if advances were made.—Cockburn v. Watkins, 76 Ala. 484. But, unless advances were made, there was no lien in fact; and a certificate that no claim or lien existed, other than that for land and mule rent, though forged, could not injure or defraud any one, and legal forgery could not be predicated of it. To make the indictment sufficient, it should have averred that Lewis had made advances to Jackson — such advances as the statute declares give him a lien. — Code of 1886, § 3056. The indictment is insufficient, and the demurrer to it should have been sustained.
Reversed and remanded.
