Manaway v. State , 44 Ala. 375 ( 1870 )

B. E. SAEEOLD, J.

The motion to exclude the testimony of the witness, Stone, was properly overruled. The witness was competent to prove his authority to issue the certificates. — Phil. Ev., vol. 1, §416, 2 vol. §63. His want of knowledge of the defendant’s handwriting was no objection to the admissibility of his evidence.

The instrument alleged to be forged was obliged to be introduced at the trial, or its absence satisfactorily accounted for. — Bishop’s Crim. Pro., 2 vol., § 387; Butler v. The State, 30 Ala. 43. The genuine tickets taken from the prisoner at same time were a part of the res gestee, and constituted a link in the chain of evidence. No reason is alleged why they should have been excluded. — Mason & Franklin v. The State, 42 Ala. 532; Givens v. The State, 5 Ala. 747.

The act of the legislature authorizing the association to make and sell certificates of subscription was competent evidence. The testimony tending to impeach the witness, Massey, was inadmissible for want of the proper predicate. Bradford v. Barclay and Wife, 89 Ala. 33.

The only error in the record is the failure, on the part of the State, to prove that the company had paid the $1,000 required as a condition precedent to their right to set up a lottery. — Acts, 1868, p. 511. Without the performance of this condition the certificates were illegal, and not the subject of forgery. —Eev. Code, 3616.

The objection does not apply to the subsequent payments required.

The judgment is reversed and the cause remanded. The prisoner will remain in custody until discharged by law.