Scully v. State , 39 Ala. 240 ( 1864 )

STONE, J.

Tbe second count of tbe indictment in this case is based on section 3165 of tbe Code, which reads as follows: “ Any person who utters and publishes as true, and with intent to defraud, any forged or counterfeit instrument, or writing, or any counterfeit gold, silver, or other coin, tbe forging or counterfeiting of which is declared by this article to be an offense, knowing sucb instrument, writing, or coin to be forged or counterfeited, must, on conviction, be adjudged guilty of forgery of sucb instrument, or writing, or of counterfeiting sucb coin; but, if it appear on tbe trial that tbe defendant received sucb forged or counterfeit instrument, writing, or coin, of another, in good faitb, and for a valuable consideration, without any circumstances to justify tbe suspicion of its being forged or counterfeited, be must, on conviction, be punished as if guilty of forgery in tbe third degree.”

Tbe forgery charged in tbe indictment in this case, for uttering which tbe defendant was convicted, is forgery in tbe second degree, under section 3158 of tbe Code. Being convicted of knowingly uttering sucb forged instrument, <fcc., tbe law adjudges tbe defendant guilty of forgery in tbe second degree, unless it appeared “that tbe defendant received sucb forged instrument of another, in good faitb, for a valuable consideration,” &c. It is here contended, that no judgment of conviction should have been pronounced on tbe verdict of tbe jury, because it fails to find whether or not tbe defendant received tbe forged instrument of another, in good faitb, &c., under tbe section of tbe Code above quoted. In support of this proposition, two decisions of this court are relied on — viz. : Cobia v. The State, 16 Ala. 781, and Johnson v. The State, 17 Ala. 627. See, also, State v. Montague, 2 McCord, 257; McPherson v. The State, 9 Yerger, 279 ; Kirby v. The State, 7 Yerger, 259.

With tbe decisions in tbe cases of Oobia and Johnson, (supra,) we are entirely satisfied. Tbe statute had divided murder into two grades, and bad, in terms, made it tbe duty of tbe jury, if they found tbe defendant guilty, to ascertain by their verdict whether he was guilty of murder in tbe first or second degree. Hence, a general finding of guilty of murder, without ascertaining tbe degree, did not authorize tbe court to pronounce judgment on tbe finding. Tbe court bad no means of determining tbe degree of tbe defendant’s guilt. Tbe statute under which these proceedings are instituted — sectiqn 3165 of tbe Code — is entirely different in its frame and phraseology. Forgery, under our Code, is divided into three degrees: first, second, and third. Section 3165 embraces forgeries in each of tbe several degrees; and under its provisions, offenders may be punished under each of tbe grades, depending on tbe nature of tbe instrument forged and uttered. Tbe last clause is in the nature of a proviso, operating for the benefit of the accused, if be can bring bimself within its provisions. Its language is, “ if it appear on the trial,” &e. Unless it appear on the trial, the defendant cannot claim the privilege it confers; and the silence of the record on the question, precludes us from affirming that it did appear on the trial. As presenting some analogy to this question, see 1st Waterman’s Archbold, 81-2-3, and notes; Spiers v. Parker, 1 T. R. 141; The King v. Hall, ib. 320; The King v. Earnshaw, 15 East, 456; Steel v. Smith, 1 B. & Ald. 94.

We hold, that the verdict in this case justified the judgment rendered.

[2.] The last charge of the court, to which exception was taken, when properly construed, asserts only that, if the forgery was committed in Baldwin county, and if defendant and Cluny, in order to defraud Harwell or another, there combined to accomplish their purpose, by having the said forged instrument uttered in Mobile county; and if, pursuant to such combination, the forged instrument was uttered in Mobile, then the defendant could be convicted of uttering in Mobile county, although all his acts in connection therewith were done and performed in Baldwin county. The facts supposed in the charge would clearly constitute the prisoner an accessory before the fact in the crime of uttering the forged instrument; and inasmuch as accessories before the fact are made principals by the Code, this charge is free from error. — Code, § 3526. See, also, Bishop v. The State, 30 Ala. 34; People v. Rathbun, 21 Wend. 509.

[3.] The charge of the court which instructed the jury, that they were not bound to believe certain evidence before them (the deposition of defendant) to be true, asserted but a truism, and is free from error. We are not able to perceive that this charge was so framed as to mislead; and, if it was so general as not to satisfy the wishes of the accused,- or the wants of his case, it was his privilege to ask a more specific charge.

Judgment of the city court affirmed.