Thompson v. State , 30 Ala. 28 ( 1857 )

RICE, C. J.

The rules of evidence are distinct from the rules of pleading. Objections to jdeadings must be determined by the rules of pleading. Objections to evidence must be determined by the rules of evidence.— It is a general rule of pleading, that in an indictment for forgery, the instrument alleged to be forged should be set forth in words and figures, or that its tenor should be accurately stated. There are exceptions to- this rule, but we need not notice them in this case; for here the indictment is clearly in conformity with the general rule above stated, and the objection is not to the pleading, but to the evidence.

As the indictment professes to describe the instrument alleged to be forged only by setting it forth in words and figures, the State is precluded from the right to insist on any proof short of the description thus given. But, to establish that description, the State may resort to secondary evidence of the contents of the instrument, as it was-before it was lost or destroyed, upon first proving that it Avas lost or destroyed; or, if there is proo-f that only part of the instrument was lost or destroyed, secondary evidence of' the contents of that part is admissible. All that can be required of the State, in such a case as the present, is, to produce the best evidence the nature of the case admits of, and that is within its reach. If the prosecutor, after receiving the instrument from the defendant,, tore off and destroyed his name and one of the letters in the word hundred, as he testified, then, unless it is shown that there is within the reach of the State or prosecutor an examined copy of the instrument, as it was before the prosecutor thus destroyed these parts of it, the contents of the parts thus destroyed may be proved by him, or by any other witness who saw and read the instrument before the destruction of these parts of it, and who can speakpointedly and clearly to the tenor and contents ofthese lost parts. If the jury believe such parol evidence of the contents of the lost parts, and if they farther believe from it, in connection with the parts of the instrument which were not destroyed, and the other evidence in the cause, that the instrument, as it was before the destruction of these lost parts, and as it is described in the indictment, was forged by the defendant, or that it was uttered and published by him as true, with intent to defraud, knowing it to be forged, they may, under the Code, find him guilty of forgery, under the present indictment. — Code, §§ 3158, 3165; Bishop v. The State, at the present term ; United States v. Britton, 2 Mason’s Rep. 464, and other authorities cited by the attorney-general.

But the defendant is entitled to a trial by jury. The determination of the facts which are essential to constitute his guilt, must be left to the jury, and must not be assumed by the court. The credibility of the evidence must also be left to the jury, and must not be assumed by the court. In the charge of the court excepted to by the defendant in this case, it is assumed that there were “other circumstances in the cause.” The credibility -of the evidence, tending to prove those “other circumstances,” was not left to the jury. In thus assuming the existence of “other circumstances,” without referring to the jury the credibility of the testimony by which they were assumed to be established, the court below erred; for it is manifest that, without the existence of other circumstances than those distinctly referred by that charge to the determination of the jury, the inference which it authorized the jury to draw was not legitimate.

For the error in that charge, the judgment is reversed, and the cause remanded. The defendant must remain in ' custody, until discharged by due course of law.