Williams v. State, 126 Ala. 50

Williams v. State

126 Ala. 50 | Ala. | 1899

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 forgery, as we have intimated, may' be committed by the false making of a written instrument in the name of 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 lie made inquiry of the person whom the defendant informed him drew the check and also of another person by the name of Johnson as its drawer, at * *57the instance of the defendant, and that he was unable to find any person named Johnson, whose initials were “J. 13.” ivas 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 person.— 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 place by a stranger, his testimony, as to the fact and its results, is admissible to the jury, though it may not be satisfactory 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 paid 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 of 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 supported 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 the 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, and the check being payable to his order, the jury were authorized to infer an intent to defraud and that he, himself, forged it.—Curtis v. The State, 118 Ala. *58125; 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 which he purports to he the beneficiary, and applying it to his own uses, must, in the absence 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 presumption grows stronger, when he uses or attempts to use it.”

As to whether the explanation offered 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 because not stamped as required under the act of Congress, is without merit.—2 Bishop’s New Cr. Law, § 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 notes 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 defense. 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.

*59It is clear under the principles we have announced, that the court committed no error in its rulings upon the trial of the cause.

Affirmed.