Johnson v. State , 35 Ala. 370 ( 1860 )

A. J. WALKER, C. J.

The first count of the indictment is in exact conformity to the form prescribed by the Code, in the description ancl statement of the name of the corporation by which the bank-bill, alleged to have been forged or counterfeited, purported to have been issued. — Code, p. 703, form 39. The count is, therefore, not defective in that particular. — Lowenthal v. The State 32 Ala. 589 ; People v. Stewart, 4 Mich. 656.

[2.] Counterfeiting and forgery of a bank-note, if not identical, are, at least, offenses of the same character, aud subject to the same punishment; and a defendant may, under section 3506 of the Code, be charged, in the alternative, with the commission of either in the same count. Although the form above referred to may not contain the alternative charge of forgery or counterfeiting, yet that mode of allegation is expressly authorized by section 3506, and the form suggests no prohibition of that mode of allegation. We therefore cannot follow the statute, without tolerating such a mode of pleading in this case; and we must decide, that the objection on account of the alternative character of the charge is not well taken.

[3.] The possession of a large amount of counterfeit bank-bills, similar to that described in the indictment, and the defendant’s conduct, evincing a desire to conceal them, and a willingness to exhibit current bank-bills which he had, occurring within two or three hours after an attempt to pass the bill mentioned in the indictment, contributed to show the defendant’s knowledge that the particular bill was a counterfeit, and that he had it in his possession for fraudulent purposes. Such evidence also had a bearing upon the question, whether the defendant was the guilty agent in the perpetration of the forgery. There was no error in its admission. — Tharp v. The State, 15 Ala. 749; Wharton’s Am. Crim. Law, § 1457 ; State v. Van Hereten, 2 Penn. 526; State v. Houston, 1 Bailey, 300.

[4.] There was no impropriety in the admission of the evidence that the bills of the bank, counterfeits of which the defendant had in his possession, were current. Such evidence at least had a direct bearing upon the question of the fraudulent intent, which is an ingredient of the oflense, and contributed to show a motive for the offense; and was, on that account, if for no other reason, admissible.

[5.] The two witnesses, Hannon and Cook, had been much engaged in handling the notes of the bank by which the note alleged to be a counterfeit purported to have been issued. One was the teller of a bank, and the other was engaged in the exchange business. One of them had remitted to the bank its notes, and corresponded with its cashier, and knew his signature. The other had frequently sent the genuine bills of the bank, which was located in Augusta, Georgia, to the agent of the institution of which he was teller, and those notes were placed to the credit of the institution of which he was teller. Both witnesses were acquainted with the genuine bills of the Georgia Railroad and Banking Company, and both had a knowledge of counterfeit bank-bills. There was no error in permitting these witnesses to give their opinions as to the genuineness of the bank-bill in question. Wharton’s Am. Crim. Law, 1465; Martin v. Commonwealth, 2 Leigh, 745-749; Moore v. Commonwealth, ib. 701-706; Commonwealth v. Riley, Thatch. Crim. Cases, 67; May v. The State of Ohio, 14 Ohio, 461. The fact that the verisimilitude of the signature was so perfect, that the forgery could not be detected by reference to the signature, was no reason why the witnesses, who were experts, should not be permitted to give their opinion as to the genuineness of the bills. "Witnesses may form an admissible opinion “ on that question entirely from the impression made by the plate on the face of the note, and by the general appearance of the note.” — Johnson v.. The State, 2 Carter’s (Ind.) R. 652; Commonwealth v. Smith, 6 S. & R. 568; State v. Harris, 5 Iredell’s Law, 287; Corbett v. State, 31 Ala. 329.

[6.] That the money which the defendant had when he left Franklin county was obtained honestly, was an inference to be drawn from other facts, and not a fact itself It was, therefore, an appropriate question for the jury, upon proof of the facts, and not a matter to be testified to by a witness. Testimony that a conveyance, upon an issue of fraud vel non, was honestly obtained, would not be admissible; and that seems an analogous question to the one in hand. We are not sure that the manner in which the defendant obtained the money he had when he left Franklin county, was a matter at all material in this case; but, if it was, we approve the ruling of the court as to the admissibility of the statement, that he obtained it honestly.

[7.] If the forgery was established, the possession by the defendant of the counterfeited note in the county of Montgomery, together with the entire want of evidence of a prior possession elsewhere, was sufficient, in the absence of countervailing testimony, to authorize the inference by the jury that the forgery had been committed in Montgomery county. This position is sustained by the authorities wre cite, and is altogether consonant with reason. United States v. Britton, 2 Mason, 464; State v. Morgan, 2 Dev. & Bat. 348; Spencer’s case, 2 Leigh, 751. The act of forgery is done in secret. Direct testimony, as to the precise place where it is done, is rarely attainable. In avast majority of eases, even when guilt was clear, it would reward the counterfeiter with an immunity from punishment to require positive and direct proof of the venue. The place of the forgery is peculiarly, and in most cases exclusively, within the defendant’s knowledge; and it is in his power to shield himself from a conviction in a wrong place, by proof of the true venue. It is, therefore, a matter of manifest justice and propriety to infer the forgery to have been committed at the place where the paper appears to have been first in the defendant’s possession. The inference is by no means conclusive, and will give way to sufficient countervailing evidence. The inference is drawn upon the same principle, upon which it is presumed, where a larceny has been committed, that the person found shortly afterwards in the possession of the stolen goods is the guilty agent. There was no error in the refusal to give, without qualification, the charge asked, nor in the giving of the qualification to that charge.

Judgment affirmed.