Bishop v. State , 30 Ala. 34 ( 1857 )

STONE, J.

The rule of practice numbered 20, on page 715 of the Code, is but a reprint of the same rule found in Olay’s Digest, page 609. Twenty-three rules, including the one under discussion, were adopted by the supreme court at the January term, 1838. They were styled “rules of practice in the circuit and county courts.” Although county courts had been abolished long before the adoption of the Code, yet we find these same rules, tlie caption unchanged, published as an appendix to the Code. Said rules are repealed by the Code, to the extent that any provision of the latter is inconsistent with the former. Section 3613 of the Code is inconsistent with that part of rule 20, which makes it the duty of the clerk, on change of venue in criminal cases, to transmit any of the original papers; and, to that extent, repeals said rule. The circuit court rightly overruled all motions of the prisoner, based on the absence of the original indictment.

There is no provision of the Code, which requires the clerk to exemplify his records, in cases such as this, either by his official or private seal. Section 3613, after declaring what the transcript shall contain, commands him to “attach Ms certificate thereto.” However the rule might be, if the record of another State were offered, the circuit court of Dallas had judicial knowledge who the circuit clerk of Wilcox was; and we regard the certificate in this cause sufficient to uphold the jurisdiction. — See Ingram v. The State, 27 Ala. 17; Doe, ex dem. Saltonstall v. Riley, 28 Ala. 164.

The main points of inquiry raised by the charge of the court, are — first, does the law authorize the conviction of^ a party, on a charge of forgery, on evidence which only proves that he uttered and published as true a forged instrument, knowing it to be forged? Second, can a party, who is at the time in one county, through an agent in another county, utter and publish a forged instrument, so as himself to be guilty of the offense in such latter county ?

The Code (§ 3165) answers the first of these questions. Its language is: “Any person, who utters and publishes as true, and with intent to defraud, any forged or counterfeit instrument or writing, * * * the forging or counterfeiting of which is declared by this article to be an offense, knowing such instrument, writing [or coin] to be forged or counterfeited, must, on conviction, be adjudged guilty of forgery of such instrument or writing.”- Section 3158 declares, that the instrument charged in this case to have been forged, is one of the subjects of forgery in the second degree. These two sections are found in one and tbe same article in the Code. The law declares, then, that one who is convicted of the crime of uttering and publishing, shall be adjudged guilty of forging the instrument. The charge only authorized the jury to draw the inference which the law itself draws; and in this respect, the charge is free from error.

The second question raised by the charge was elaborate!y considered by the supreme court of New York, in the great ease of the People v. Rathbun, reported in 21 Wendell, 509. In that case, CoweN, J., stimulated, n doubt, by the magnitude of the case, reviewed and commented, with his accustomed ability, on the principal authorities both English and American. The prisoner, who had been a merchant of large operations and extensive credit, being in the city and county of New York, enclosed three notes of $5000 each, having forged endorsements on them, to a distant county in the same State, viz., Genesee; and, on the faith of the genuineness of the endorsements, received from the person to whom they were sent by mail his money obligations for a corresponding amount. The prisoner was indicted in the county of Genessee; and the question was, whether the prisoner, who at the time was in the county of New York, had uttered the forged instruments in the county of Gen-essee. It was adjudged that he had.

The principle's of that case, and the authorities therein cited, authorize us to lay down the following propositions : First,so long as the forged instrument remains in the hands of an innocent agent of the forger, the crime of uttering is not perpetrated. Second,when the agent, being himself innocent, utters or publishes the forged instrument as true, the offense of uttering is complete, and the guilty principal, though in a distant county, is regarded as the author of the crime; and the crime is regarded as committed by him, at the place where the agent uttered the forged instrument. In such case, the agent is the mere instrument of his •principal, and is no -more guilty than any other instrumentality which a felon may eurploy to accomplish Ms ‘’ends. For all criminal piirposesy the agency is as unimportant, as a mail-carrier who bears a letter containing a forgery. Third, if the party who utters the forged instrument, be an accomplice, the rule of principal and accessory before the fact in the crime •of uttering, determines the guilt of the respective parties.

These several propositions are fully sustained by authority, and they are, in substance, stated and approved by an able modern writer on criminal law. — Bishop on Criminal Law, vol. 1, § 556.

Upon these clear principles, we answer the second question stated above, in the affirmative. If it were necessary to consider the question, perhaps we might hold that the concluding paragraph of the charge had the effect of shifting the' onus of proof to the shoulders of the prisoner, which is not allowable except in cases so declared by statute. — See Ogletree v. The State, 28 Ala. 693.

The objection last noted could have worked no injury, because, as we have shown, the one who knowingly utters as true a forged instrument, is adjudged guilty of the forgery. If the defendant was guilty of that offense in the county of "Wilcox, it was unimportant where the forgery was in fact committed.

As this case must be reversed on the point yet to be considered, we will not comment further on the charge of the court.

The admission in evidence of what is described in the bill of exceptions as a genuine signature of the endorser, Woodard, that the jury might institute a comparison between it and the alleged forgery, is the only remaining ■question to be considered. That question has been twice before this court; and each time it was held, that papers foreign from the controversy, and having no connection with the case on trial, cannot be laid before the jury for •any such purpose. In each the principle was recognizedand .admitted, that when the question of forgery is involved, :and other papers bearing the disputed signature are legitimately before the jury, the papers themselves being pertinent to the issue on trial, the jiiry may institute a comparison. The reason of this exception to the general rale is stated to be this: that in such case the jury will •compare the handwriting, and it is much safer to adopt it as a principle, and tlms give to the presiding judge the right to instruct that body in the rules to be observed by them while making such comparison.

In the case of Crist v. The State, the question was not one of forgery vel non. The prisoner was on trial for murder. As one means of proving that his conduct about the time the offense was committed bore suspicious marks, the prosecution attempted to prove that he, the prisoner, registered himself under a different name at each of the cities, New Orleans, Mobile and Montgomery. The several registers were in evidence before the jury, and were legitimately in evidence, as facts tending to prove on the prisoner that he had denied his true name, and attempted to travel under an assumed one. "Whether the several names were in one and the same handwriting, was a very material inquiry. The jury were instructed, that they might compare the handwritings, with a view of ascertaining whether they were one and the same. This was clearly within the rule above laid down, and was not the case of a paper, having no connection with the issue, introduced for the purpose of comparison. — Crist v. The State, 21 Ala. 137.

In the case of Givens v. The State, 5 Ala. 747, the same question was considered as that presented by this record, and this court held the testimony inadmissible.

For the error 'in admitting the testimony above pointed out, the judgment of the circuit court is reversed, and the cause remanded.

Let the prisoner remain in custody, until discharged by due course of law.