Williams v. State, 126 Ala. 50

TYSON, J.

The indictment is in the Code form setting out the check in haec verba alleged to have been forged. Under it, a conviction may be had, for forging the name of the drawer of this check, although he may have been a fictitious person.—Thompson v. The State, 46 Ala. 16; The State v. Givens, 5 Ala. 747; 2 Arch. Cr. Pr. & Pl. 1585; 2 McClain’s Cr. Law, §§ 764, 792, 804.

That a forgеry, as we have intimated, may' be committed by the false making of a written instrument in the name оf a fictitious person is too well settled to admit of controversy.—Thompson v. The State, supra; The State v. Givens, supra; 2 McClain’s Cr. Law, § 764 and authorities cited in ‍​​‌‌​‌‌​‌​‌​​​‌‌​​‌‌​‌​‌​​​‌‌‌‌​​‌‌​‌‌​​​​‌​‌​​​‍note 10; 2 Bishop’s New Cr. Law, § 543; 13 Am. & Eng. Ency. Law (2d ed.) 1088 and note 2.

The testimony of La Prade, a witness introduced by the State, that liе made inquiry of the person whom the defendant informed him drew the check and also оf another person by the name of Johnson as its drawer, at * the instance of the defendant, and that he was unable to find any person named Johnson, whose initials were “J. 13.” ivаs competent as tending to establish that the name of the drawer of the check had no existence — that the name affixed as drawer was that of a fictitious pеrson.— 13 Am. & Eng. Encyc. Law - (2d ed.) 1112 and note 10. “Where inquiries are to be made in regard to the residence of any supposed party to a forged instrument, it is proper and usual to call the police officers, penny-postmen, or other persons well acquainted with the place and its inhabitants; ‍​​‌‌​‌‌​‌​‌​​​‌‌​​‌‌​‌​‌​​​‌‌‌‌​​‌‌​‌‌​​​​‌​‌​​​‍but if the inquiries have been made in the placе by a stranger, his testimony, as to the fact and its results, is admissible to the jury, though it may not be satisfaсtory proof of the non-existence of the person in question.”—3 Greenleaf on Ev. § 109. See also People v. Sharpe, 53 Mich. 523.

For the same reasons, it was entirely competent for the State to show by the paying teller of the bank upon which the check was drawn, that it ivas not рaid and that the drawer had no account or funds with the bank. People v. Eppinger, 105 Cal. 36; Rex v. Backler, 5 Car. & P. 118; Rex v. Brannan, 6 Car. & P. 326; 3 Greenleaf on Ev. § 109.

In People v. Eppinger, supra, the court said: “The testimony оf the teller in the bank on which the check was drawn that no firm 'by the name of Howell & Co. kept or had any account in his books, was prima facie evidence of the fictitious character of the check.” This proposition is supрorted ‍​​‌‌​‌‌​‌​‌​​​‌‌​​‌‌​‌​‌​​​‌‌‌‌​​‌‌​‌‌​​​​‌​‌​​​‍by the other authorities cited above in connection with this case.

Under the evidence it ivas a question for the jury to determine whether or not the name of thе drawer was fictitious. If fictitious, the case is one in which the defendant being in possession of the check drawn by a person having no existence, sold it 'to LaPrade for value. If the drawer had no existence, of necessity the name must have been affixed by some one without authority— a forgery. The defendant having uttered it, as we have shown, аnd the check being payable to his order, the jury were authorized to infer an intent tо defraud and that he, himself, forged it.—Curtis v. The State, 118 Ala. 125; Allen v. The State, 74 Ala. 557; Stein v. The State, 37 Ala. 123; 13 Am. & Eng. Encyc. Law (2d ed.) 1113.

It is said in Hobbs v. The State, 75 Ala. 6, that “One found in the possession of a forged instrument of whiсh he purports to he the beneficiary, and applying it to his own uses, must, in the absencе of explanation, be presumed to have fabricated it, or to have been privy to its fabrication. It is difficult to conceive that he couid have the possession unless he had fabricated it, or assented to its fabrication; and the presumptiоn grows stronger, when he uses or attempts to use it.”

As to whether the explanation offеred by the defendant as to his possession ‍​​‌‌​‌‌​‌​‌​​​‌‌​​‌‌​‌​‌​​​‌‌‌‌​​‌‌​‌‌​​​​‌​‌​​​‍of the check, etc., was satisfactory, was for the jury.

The objection to the introduction in evidence of the check bеcause not stamped as required under the act of Congress, is without merit.—2 Bishop’s New Cr. Lаw, § 540, and note 5; Nelson v. The State, 82 Ala. 44.

Bo, too, it was entirely competent for the State to prove by the defendant that he negotiated another check to one Bray drawn by J. D. Johnson, and by witness LaPrade that he saw the defendant with another check signed by J. I). Johnson. He is shown to have had only one transaction with LaPrade, and he testifies to only one with Johnson, from whom he says he got the checks. 13 Am. & Eng. Encyc. Law (2d ed.) 1109 and 1110 and notes; ‍​​‌‌​‌‌​‌​‌​​​‌‌​​‌‌​‌​‌​​​‌‌‌‌​​‌‌​‌‌​​​​‌​‌​​​‍2 McClain’s Cr. Law, § 808 and nоtes 2 and 3; Sharpe v. The State, 83 Ala. 48.

The fact that the defendant refunded to LaPrade the money obtained from him upon the sale of the forged check after the bank’s refusal to honor it, is no dеfense. 2 Bish. New Cr. Law, § 598; Jones v. The State, 50 Ala. 163.

Under our statutes a general.allegation of intent to defraud without naming any particular person or cornoration is sufficient (§ 4908) ; and “if the intent induces the forging or utterance as genuine of a spurious instrument with the capacity to defraud any person, the offense is complete.”—Benson v. The State, 124 Ala. 92.

It is clear under the principles we have announced, that the court committed no error in its rulings upon the trial of the cause.

Affirmed.

Case Details

Case Name: Williams v. State

Court Name: Supreme Court of Alabama

Date Published: Nov 15, 1899

Citation: 126 Ala. 50

Court Abbreviation: Ala.