Nelson v. State , 82 Ala. 44 ( 1886 )

STONE, C. J.

— There can be no doubt that the instrument alleged to have been forged, coupled with sufficient explanatory averments of fact, -may be the subject of forgery.- — Rembert v. State, 53 Ala. 467; Hobbs v. State, 75 Ala. 1; 1 Bish. Cr. Law (7th ed.), § 523; 1 Whar. Cr. Law, § 680; Dixon v. State, 1 So. Rep. 69; s. c., 81 Ala. 61. The averments in the first count in the indictment are sufficient to constitute the false making of such instrument forgery, if done with ihtent to defraud. We need not inquire as to the other counts. The indictment is sufficient. In fact, we do not understand this to be controverted.

The precise defense relied on is, that the instrument charged to have been forged is void on its face, and therefore can not be the subject of forgery. The special ground urged is, that the paper shows on its face that it was made and emitted to answer the purposes of money, and for general circulation — an indictable offense under the statute. Code of 1876, § 4433; Barnett v. State, 54 Ala. 579. We need not consider whether this paper falls within the class prohibited by the statute. If it does, it is very true the party issuing it would be liable to indictment and a severe penalty. But the paper would not be void. On the contrary, it is an absolute, unconditional promise to pay,.“and may be sued on by the holder thereof, without transfer or assignment, and without demand or protest or notice, and the amount thereof recovered, with interest thereon at the rate of fifty per cent, per annum.” — Code of 1876, § 1424. So, instead of being void, paper so emitted imposes a fearful pecuniary penalty. No class of forged paper could purport to create greater pecuniary obligation, and none, to the extent of its expressed amount, could be made a more effectual instrument of fraud.

There is no error in the record.

Affirmed.