Wright v. State , 79 Ala. 262 ( 1885 )

CLOPTON, J.

By statute, any person, who falsely makes, forges or counterfeits, any instrument in writing purporting to be the act of another, by which any pecuniary demand or obligation purports to be created, increased, discharged or diminished, is guilty of forgery in the second degree. — Code, § 4340. The defendant was indicted for the forgery of an instrument, a copy of which is set out in the indictment. The writing described is an order for money. It purports to be signed by a person who professes to have control of the money, and is addressed to another, who, as the writing purports, is under obligation to send it, as directed. Whether the instrument, if genuine, would have created a pecuniary demand or obligation on the drawer, or would have operated as a discharge of the person to whom it is directed, from a liability for funds in his possession, or from a prior pecuniary demand, depends on the relations of the parties. In either event, it is well settled, that such an instrument is the subject of forgery.—McGuire v. State, 37 Ala. 161; Jones v. State, 50 Ala. 161; Williams v. State, 61 Ala. 33; Anderson v. State, 65 Ala. 553. It is not necessary that a definite sum of money shall be specified in the order.—2 East’s P. C. 941; Bish. Stat. Cr., § 329.

2. If it were conceded that the promise of Bledsoe to pay Smith is within the statute of frauds, it would be immaterial. The instrument is the subject of forgery, if it may be used as proof prima facie in a suit, whether by or against the person whose name is forged. The material question is its capacity to work injury, though no one may in fact be prejudiced thereby. It is sufficient, if it may be regarded as a security for reimbursement, or a protection against future liability. But the promise of Bledsoe to pay Smith, out of funds in his hands as county superintendent, is not a promise to answer for the debt, default, or miscarriage of another. He was not the individual debtor of the defendant. He held the school funds in a trust and official capacity, a portion of which belonged to the defendant; and the promise is to pay Smith out of funds of the defendant in his possession, or which he may receive, a promise t j pay the debt of the original debtor, with his own money — to perform an agency. That the debt of the defendant was contracted on the faith of an agreement that Smith should be paid out of the school funds, and Bledsoe’s holding or reception of the money, constitute a sufficient consideration. Hitchcock v. Lukens, 8 Por. 333; Westmoreland v. Porter, 75 Ala. 452; Coleman & Carroll v. Hatcher & Brannon, 77 Ala. 217.

3. The verdict is sufficient to support the judgment.—Anderson v. State, 65 Ala. 553.

Affirmed.