Harrison v. State , 36 Ala. 248 ( 1860 )

STONE, J.

It is a rule in'this court, too well settled to be now questioned, that we will indulge every reasonable presumption in favor of the corz'ect ruling of the pz-imary couz-t; and that we will not presume the existence of facts, not shown by the recoi’d, with a view to the discovery of grounds - on which to base a reversal. The party excepting to the action of the court below, must set out so much of the evidence as is necessary to show that in its rulings that court eri’ed to his prejudice. Shep. Dig. 436, §§ 16, 17, 18, 19; ib. 463, §78.

To bring this case within the principle settled in the cases of Thompson v. The State, (30 Ala. 28,) and Bishop v. The State, (ib. 34,) the indictment on which the present defendant was tried must have been preferred in Barbour county, chai’giug the offense of forgery to have been committed in that county. Moreover, the uttering and publishing as true, knowing the order to have been forged, &c., must have taken place before the former indictment was found. Unless both of these facts existed at the time of the former prosecution, it was not possible to have tried and convicted the defendant under the former indictment, for the present offense of uttering and publishing as true. — Waterman’s Archbold, 13, 14, and notes; Com. v. Mortimer, 2 Va. Cas. 325; Com. v. Wade, 17 Pick. 400; State v. Ray, 1 Rice, 1; 2 Hale, 245 ; Hite v. State, 9 Yerg. 357; Burns v. The People, 1 Park. C. C. 183; Com. v. McCloud, 2 Dana, 244 ; Com. v. Roby, 12 Pick, 496.

The only recital of the evidence in the present record is, “ Defendant proved, that he was heretofore indicted aud tried for the forgery of the same wilting with the uttering of which he is charged in the indictment in this .base, and upon such trial (he was regularly acquitted.” Under the rules above declared, we are not authorized to suppose .the existence of other testimony, and on such supposed testimqny to reverse this ease. Taking the above recital as the whole of the evidence on the plea of former acquittal, it does not appear that “ the facts alleged in this, the second indictment, if proven to be true, would have warranted a conviction on the first indictment.” — See Price. v. State, 19 Ohio, 423; Hite v. State, supra ; Rex v. Clark, 1 Brod. & Bing. 473 ; Rex v. Emden, 9 East, 437; Rex v. Sheen, 2 Car. & P. 634; Heikes v. Com., 26 Penn. State R. 513; Com. v. Cunningham, 13 Mass. 245; People v. Barrett, 1 Johns. 65; 2 Lead. Cr. Cases, 553.

If the record in this case affirmed that the former indictment had been preferred by a grand jury of Barbour county, and that the act of uttering and publishing had been done before that indictment was preferred, we can not say that the plea of former acquittal would not have been sustained. — See Code, §§ 3154, 3165 ; Thompson v. State, supra; Bishop v. State, supra; Waterman’s Arch. 13-14, and notes. The charge, however, in the present case, viewed in connection with the evidence, is free from error.

[2.] Although, under our statutes, a party may be indicted for forging instruments of certain classes, and convicted on evidence which simply shows that be uttered and published them as true, knowing them to be. forged, (see Code, §§ 3154, 3165;) yet an indictment framed as this is, is sufficient. — Code, §§ 3501, 3518, 3519, 3526; see, also, 1 Waterman’s Arch. 13,14, supra.

It results from what we have said, that there is no error in this record, available to defendant, and the judgment of the circuit court is affirmed.