Butler v. State , 22 Ala. 43 ( 1853 )

LIGON, <J.

The first, second, third and fifth counts of this indictment are evidently framed in reference to the forty-third section of the fourth chapter of our Penal Code, (Clay’s Digest 423, §43,) which declares, that “every person who shall falsely make, alter, forge, or counterfeit, any bond, bill single, promissory note, bill of exchange,'or the acceptance of any bill of exchange, or the indorsement of any bond, bill single, promissory note, or bill of exchange, or any cotton receipt, or receipt for the payment of money, or any other thing, shall, on conviction, be deemed guilty of forgery in the second degree.” The sixth count is framed under the forty-ninth section of the same chapter, (Clay’s Dig. 424, § 49) which declares the uttering of a forged note a crime of the same grade as the forgery itself. These counts are severally demurred to; first, for a variance between the instrument described in them respectively, and the one produced on the trial; and secondly, because the instrument set out in each of them is not a promissory note.

The first ground of demurrer, that for a variance, does not arise on the demurrer found in the record, since it does not appear that oyer was craved of the instrument, and without this the court cannot look to it to see whether there be a variance or not.

The objection taken, that the paper set out in the several counts in the indictment is not a promissory note, ought not, we think, to prevail. It is true, the instrument as it is set out in each count, except the second, so far as the arrangement and order of its words are concerned, is not in the form ordinarily used in drawing a promissory note; yet, when examined, it will be found to contain all that is necessary for that purpose. Neither form of it could be read, without impressing tbe mind, at once, with the idea that it was a good promissory note for one hundred and two dollars, payable on the 25th of December next after its date. The words which are awkwardly, unskilfully or designedly blended with such as are necessary to make a promissory note for this sum, are not of such an import, nor are they so placed, as to weaken or destroy the force of the operative ones. They may be altogether stricken out, and still the instrument would remain a promissory note; or they may remain without affecting its character as such.

It is unnecessary to transcribe in this opinion the various forms of the writing charged to be forged, as it appears in the first, third, fifth and sixth counts of the indictment. One form of it, and that, perhaps, the most objectionable, must suffice. I copy from the fifth count: “By the twenty-fifth day of December next I promise date to pay to Wm. H. Butler, or bearer, the sum of one hundred and interest from and two dollars for value rec’d of him, this February 23, 1850, Stephen Burns.”

It may well be asked, what possible influence can the words “ date and interest from,” in the connection and order in which they occur here, exercise over the remaining words of the instrument, either to change, enlarge, or restrict their meaning? We can see none: and are constrained to hold, that the instrument set out in the first, third, fifth and sixth counts of the indictment is a promissory note, within the meaning of the sections of our Penal Code heretofore quoted.

This objection cannot apply to the second count, as that sets out the instrument as a promissory note for the sum of $102, with interest from date.

It is further objected to the first and sixth counts, that the forgery is not charged to have been done feloniously. It is true, that the author to which we are referred says; “ In forgery the word “feloniously” must be used, if made felony by the statute.” Archbold’s Crim. PI. 46. This, doubtless, is the law in England, and an indictment would be bad on demurrer which did not charge the forgery to have been done feloniously. But this court has already held, in Beasly v. The State 18 Ala. 535, that the true interpretation of our statute (Clay’s Dig. 442, § 26) is, to dispense with the use of tbe word “feloniously” in all indictments for crimes which were misdemeanors at common law, but are made felony by our Penal Code. Forgery by the common law was deemed a misdemeanor. 1 Russ, on Crimes 82; 2 ib. 817. But by statute, both in this State and in England, it has been made felony. In an indictment, therefore, for forgery in this State, it is not indispensable that it should be charged to have been done feloniously.

On the trial the following note was offered as evidence under each count in the indictment: “ By the twenty-fifth day of December next I promise date to pay Wm. H. Butler, or bearer, the sum of one" hundred and interest from and two dollars for value rec’d of him, this February 23, 1850, Stephen Burns,” which was objected to by the prisoner; but his objection was overruled, and he excepted.

TTnder the first, third, fifth and sixth counts of this indictment it is perfectly clear,, the note offered was properly received in evidence. To render it admissible, it is not necessary that there should be a literal correspondence between it and the paper set out in the counts under which it is offered. If the correspondence be such as to prevent the prisoner from, being put a second time in jeopardy for the same cause, should he be acquitted, or from being a second time punished, if he is convicted, it will be sufficient. The note here offered, in the arrangement and order of its words, is almost an exact counterpart of the one set out in the several counts just enumerated, and was rightly allowed to go to the jury under them. The variance is merely literal, and consequently is not enough to exclude it.

• The second count in the indictment sets out the forged instrument as a promissory note for the payment of one hundred “ and two dollars, and interest from date,” and it is not quite so clear that the paper offered in evidence, as it is set out in the bill of exceptions, does not vary from the one set out in that count. The note, set out in the bill of exceptions, contains the words “ and interest from date,” but they are differently placed from what they are in the second count of the indictment. From their collocation in the note, that instrument is rendered somewhat ambiguous; but the ambiguity is patent, and it was fully in the province of the judge in the court below to examine it, and declare bow it should read. The original note was before him; we have nothing but the transcript, and this does not pretend to furnish even a fae simile of the note. Under these circumstances, we cannot say the court erred in its construction of the instrument, or in allowing,it to go to the jury under the second count in the indictment. The party complaining of error must show it, and until this is done, all intendments will be indulged in favor of the regularity and correctness of the proceedings of the court below, if, as in this instance, it be one of general jurisdiction.

The testimony in relation to the manner in which the prisoner read the note to the witness, when the latter hesitated about receiving it in consequence of the uniqueness of its form, we do not think objectionable. It does not, it is true, tend to prove the making of the forged instrument by the prisoner, but it tends strongly to show the quo animo with which it was made and uttered. It could not deprive the prisoner of the benefit that might arise to him from an inspection and construction of the instrument by the court, for, we have seen that, as the ambiguity which arises from the singular introduction of inapt words in some parts of the face of the note was patent, the court must pronounce upon the meaning of the paper upon inspection, unaided by parol proof; the jury has nothing to do with it. Evans v. Steele, 2 Ala. 104.

Any fact or circumstance which has a tendency to show the intention with which the act constituting the offence was done, is admissible both for and against the prisoner, unless such circumstance be found in his own declarations, and these he cannot introduce in his own favor, although if they are brought out by the prosecution he has the right to all that was said at that time.

There is no error in the proceedings of the court below, and the conviction must be allowed to stand.

On inspecting the record in this ease, we find that, by an order of the court below, the original note, on which the forgery is assigned, is attached to the transcript. This is improper. That paper belongs alone to the files of the court below, and should not be allowed to be taken out of them for any purpose. The hazard of losing it should never be incurred ; for, had we reversed the decision in this case, and the note in passing from court to court should be lost, and it could not be shown that it had passed into the hands of the prisoner, he would stand on much higher ground on the second, than he occupied on the first trial. The act of sending it here was not only improper, but wholly useless and unnecessary. We are not allowed to look at it for any purpose. The law which allows this court jurisdiction to review the acts and decisions of inferior courts, requires that it shall act alone on transcripts of the records and proceedings of those courts. Clay’s Dig. 306, § 1; ib. 808, § 13. Their files are sacred; we have no power to invade them; and if, by any means they reach this court, we have no right to inspect or use them for any purpose whatever.