Allen v. State , 79 Ala. 34 ( 1885 )

STONE, C. J.

The indictment in this case was framed under section 4340 of the Code of 1876, and contains two counts. The offense, if sufficiently averred, is forgery in the second degree. There was a demurrer to each count, which the City Court overruled. The paper set out in each count is, in form, a receipt for money, paid on account by Jack Allen, to W. Y. Bell. The offense charged is, that Jack Allen did falsely forge said instrument, with intent to defraud ; and in each count it is averred-, that by such instrument, so alleged to be forged, a pecuniary demand purported to be discharged or diminished. Our statutes permit this alternative, or disjunctive form of averment. — Code, § 4797. And if either one of the intents or results charged be shown — all being alike criminal — this will sustain both the indictment and the conviction. The offense is complete, and of equal criminality, whether the instrument alleged to have been forged purported to discharge in full, or only to diminish a pecuniary demand. A copy of the receipt is set out in hose verba; and its necessary purport and implication are, that Allen was, at the date of the receipt, indebted to Bell on account, and that by the receipt the indebtedness was diminished, or acknowledged to be diminished, by the sum expressed in the receipt. Any false making, or alteration of such a paper, in the name of another, purporting to produce this result, if done with intent to defraud, is forgery in the second degree; and the jury, under proper instructions, are judges of the intent.—Thompson v. State, 49 Ala. 16; Rembert v. State, 53 Ala. 467; Allen v. State, 74 Ala. 557; Baysinger v. State, 77 Ala. 63. Nor is there anything in the omission of the word “ be ” in the second count. The context supplies it.

What we have said above demonstrates, that the City Court did not err in refusing to give the charge asked by the defendant. If the receipt was intended to diminish a pecuniary demand, that is as much a violation of the statute, as if the intention was to discharge it altogether.

There was a demurrer to the second count of the indictment, assigning as one of the grounds, “ that said count is insufficient in not showing wherein the alteration of the date of said receipt was material.” The second count, after charging that defendant “ did falsely, and with intent to defraud, forge a receipt for the payment of money, purporting to (be) the act of one W. V. Bell, by which a pecuniary demand purported to be discharged or diminished,” .contains a copy of the receipt as it appeared after the alleged alteration was made, and adds, “ the said forgery consisting in the changing of the date of the said receipt from the year 1882 to the year 1884.”

Section 4340 of the Code of 1876, as amended by act approved January 27, 1883 — Sess. Acts, 33 — defines the offense for which defendant was prosecuted. Each count of the indictment contains every material ingredient of this statutory crime. No form of indictment for this species of forgery is given in the Code. The nearest analogy, perhaps, is found in forms 49 and 52, p. 997 of the Code. The indictment is sufficient in form.- — -Code, §§ 4799, 4824.

It is urged, in support of the demurrer, that the alteration of the receipt set ont in the second count, and charged to be the forgery complained of, does not, on its face, appear to be material. We can not assent to this. As we said above, the implications of the receipt are, that Allen was indebted to Bell by account, and that Bell acknowledged the payment of th'e sum of two hundred and twenty dollars on that account. Indebted and partially paid, when ? Evidently at the date of the receipt as altered, 1884. Here, then, according to the face of the paper, was evidence that Bell held a pecuniary demand against Allen in September, 1884, on which the latter obtained a credit of that date, diminishing the debt -or liability by the sum of two hundred and twenty dollars. This was the purport of the paper; and thus the case charged is brought directly within the statute, if the intent was to defraud ; and whether such was the intent, was fertile jury to inquire.

Without explanation, it is no answer to this implication or purport, that the paper, as originally drawn and signed by Bell, proved an indebtedness in 1882, and a corresponding diminution of that indebtedness by the sum expressed in the receipt. Diminution of one indebtedness, is not necessarily an enlargement of the other. If we could assume that the indebtedness of 1882 still existed, or constituted a part of the indebtedness of 1884 as one continuing pecuniary demand, and that the alteration of the date was only a transfer of the credit from one date to a later one, theu, indeed, the alteration would seem to be immaterial. But we can make no such assumption. The transaction charged, and the altered receipt on its face, purport to diminish an indebtedness in 1884, and there is nothing to raise the presumption that it increased the indebtness of 1882 by a corresponding amount. We can not presume the indebtedness of 1882 still existed. For aught that we can know, or presume, that indebtedness had been cancelled, allowing Allen the benefit of the payment, of which the receipt furnished the evidence, and a second use was attempted to be made of it, in part payment, or diminution of the pecuniary demand of 1S84. The possession of the receipt by Allen does not militate against this. Receipts for partial payments need not be, and are not usually taken up, when final settlement is made. So we hold, that there is nothing on the face of the indictment to repel, or weaken the implication, that the receipt as alleged to be altered diminished a pecuniary demand, and the demurrer was rightly overruled.—Hex v. Hope, 1 Moody, 414.

If it had been shown in proof that the alleged alteration did ■not in fact diminish the indebtedness from Allen to Bell, but simply transferred the payment from one debt to another, this would have been pertinent testimony on the inquiry whether there was an intent to defraud. No ruling of the court brings that question before us.

The testimony tends to show that Bell had sued out an attachment against Allen, the defendant in this case, and that Allen had sued on Bell’s attachment bond ; which latter suit had been tried, and Allen testified as a witness on the trial. The receipt, the subject of the alleged forgery, was admitted ou all hands to be genuine, except as to date. Bell testified that the true date of the receipt, as given by him, was 1SS2. It was produced on the trial of the suit on the attachment bond, and purported to be dated in 1884. The sole purpose for which evidence of the two civil suits was offered, was to lay a predicate for, and furnish an introduction to the testimony of Jack Allen, given in the suit on the bond. The testimony tended to show that, in his evidence on the trial of that suit, Allen produced the receipt in its present form, and claimed that it truly represented a payment made by him in 1884. The material bearing of this testimony was, that it tended to prove that Allen uttered the paper as true, which was an important circumstance in determining whether he was concerned in its alteration, if altered it was. The trial in which he gave testimony was not a material fact in this case, for the asserted right under the receipt would have been equally potent under the inquiry of forgery vel non, if it- had been deliberately made under different circumstances. The trial and judgment, even if proved by the record, could have exerted no influence in the determination of the issue before the jury in this case. It was the mere accident of the case, describing the occasion on which the instrument, alleged to be fraudulently altered, was uttered. The attachment suit, and the suit on the bond, were not in issue in this case. They came up collaterally ; or, correctly speaking, they had nothing to do with the case. The utterance as true was the material fact ;.the suits, the accidental accompaniment. This is not a question of primary and secondary evidence, but simply the proof of an accidental, or collateral fact. The City Court did not err in allowing the witness to speak of the suits, without the production of the records.—1 Green. Ev. § 573 b; 1 Brick. Dig. 849-51, §§ 638, 659, 665, 681, 686, 753; Graham v. Lockhart, 8 Ala. 9; 1 Whar. Ev. § 64.

Nor did the City Court err in allowing the witness Bell to testify that he had been examined as a witness before the grand jury. Of itself, this proved nothing hurtful, and may have been introduced merely as a reminder, or stepping-stone, to the subject about which he was called to testify. There are many possible categories, in which such inquiry would become necessary, or, at least, proper.

The verdict, when first returned by the jury, was imperfect. The court informed them of the imperfection, and instructed them to retire and consider further. This they did without having dispersed, and without having been discharged. The court in this only did its duty.—Allen v. State, 52 Ala. 391.

Affirmed.