Gooch v. State , 249 Ala. 477 ( 1947 )

Certified Questions from Court of Appeals.

Ralph Gooch was convicted of forgery in the second degree and appealed to the Court of Appeals, and that Court certified a question to the Supreme Court under Code 1940, Title 13, § 88.

Question answered.

Answer to certified question conformed to in Ala.App.,31 So.2d 779.

Certification to Supreme Court To the Supreme Court of Alabama:

The judges of this court are in disagreement and "unable to reach an unanimous conclusion" as to the controlling question in the case of Ralph Gooch v. State, from Lauderdale Circuit Court, now pending in this court.

Our Court in Aders v. State, 21 Ala. App. 41, 104 So. 882, held that an instrument, which under Code of 1923, Section 6821, Title 9, Sec. 21, Code of Alabama 1940, was void on its face because executed on Sunday, is not subject to an indictment for forgery unless under certain circumstances extrinsic to the paper itself, such as an allegation that, while it bore date as of a Sunday, yet as a matter of fact, it was forged or uttered on a week day.

The Supreme Court in Crow v. State, 236 Ala. 26, 183 So. 907,908, cited several cases bearing upon the question as to what instruments are subject to forgery, but did not cite the Aders case, though other cases of the Court of Appeals were cited. In the Crow case, supra, the Supreme Court said:

"The cases hold that unless the instrument is one, the forgery of which is a crime at common law, or shows on its face that if genuine is of apparent legal efficacy and has the capacity to defraud, or is described by sections 4120 or 4121 [Code 1940, Tit. 14, §§ 199, 200], or other statute, the indictment must allege extrinsic facts which show its legal efficacy or capability to defraud."

Our Court in the case of Hall v. State, 31 Ala. App. 455,18 So.2d 572, 573, held that:

"It is only necessary that the forged instrument possess some apparent legal efficacy; that there is a reasonable possibility that it may operate to cause injury; and such an instrument may constitute a forgery, although if it were genuine other steps would have to be taken before it would be perfected."

The Supreme Court in the case of Jones v. State, 50 Ala. 161, in treating an instrument in words and figures as follows: "Pa, please send me ($5.00) five dollars. Walter Sinks," with reference to the law of forgery held as follows:

"The capacity of the false and fraudulent writing to work injury, is the material question. If the writing has that capacity, the offense is committed. We cannot doubt that the forgery of a writing, purporting to be an order or request from a son to a father, for money, is criminal and punishable. It may be that the payment of the money by the parent, on the order, if genuine, would be gratuitous, a mere matter of affection and favor; yet it is as criminal, morally and legally, to cheat and defraud him by practicing on his affection for or favor to a child, as by the pretense that he was being discharged from a legal liability, or acquiring a legal right. If the order had purported to be drawn by one having funds in the hands of the father subject to draft, it cannot be doubted that falsely and fraudulently making such order would have been forgery. Or if it had purported to be drawn on him, by one who would have become his debtor on its payment, forgery of it could have been committed."

In an attempt to reconcile these authorities, being persuaded that the Aders case is unsound, that Sunday laws were enacted to suppress unnecessary business transactions on other than secular days and not for the purpose to encourage crime on Sunday, that said statute declaring contracts made on Sunday to be void was designed to discourage business transactions on Sunday by limiting civil rights arising thereunder and has no relation to or effect upon the rights of the State to enforce its criminal laws or protect itself against their violation, the judges of our court have disagreed. Therefore, as authorized by law, the following abstract questions are hereby certified to your court for an opinion as guidance to our court in said cause, to-wit:

1. Does a check dated on Sunday possess sufficient legal efficacy to defraud so as to be the subject of forgery where no extrinsic facts are alleged in the indictment?

2. Does Title 9, Section 21, Code of Alabama 1940, prevent the prosecution in the name of the State for the forgery of an instrument dated on Sunday?

The foregoing are propounded under the provisions of Title 13, Section 88, Code of Alabama 1940. As aid in determining this inquiry the transcript in the case above captioned is herewith submitted.

C. R. Bricken Presiding Judge R. B. Carr R. B. Harwood Judges

Response to Questions Certified by the Court of Appeals: The Court of Appeals under the provisions of § 88, Title 13, Code 1940, has certified for our answer the following two questions:

"1. Does a check dated on Sunday possess sufficient legal efficacy to defraud so as to be the subject of forgery where no extrinsic facts are alleged in the indictment?

"2. Does Title 9, Section 21, Code of Alabama 1940, prevent the prosecution in the name of the State for the forgery of an instrument dated on Sunday?"

A precise, categorical answer is not possible to either of these general inquiries, as will appear from the considerations hereafter noted. The legal principles adverted to, however, should be sufficient for the purposes of your decision.

The pertinent statute is: "All contracts made on Sunday, unless for the advancement of religion, or in the execution, or for the performance of some work of charity, or in case of necessity, or contracts for carrying passengers or perishable freight or transmissions of telegrams or for the performance of any duty authorized or required by law to be done on Sunday are void." § 21, Title 9, Code 1940.

The offense of forgery is committed if the accused intended to defraud by forging or uttering, as genuine, a spurious instrument which has the capacity to defraud. Jones v. State,50 Ala. 161; Denson v. State, 122 Ala. 100, 26 So. 119; Hall v. State, 31 Ala. App. 435, 18 So.2d 572, certiorari denied245 Ala. 671, 18 So.2d 574.

But a writing void on its face, illegal in its very frame, is not the subject of forgery in consequence of its incapacity to effect a fraud. Rembert v. State, 53 Ala. 467, 25 Am.Rep. 639; Hobbs v. State, 75 Ala. 1; Hall v. State, supra; Burdick, Law of Crimes 547, § 622a.

A check is a contract (Deal v. Atlantic Coast Line R. Co.,225 Ala. 533, 144 So. 81, 86 A.L.R. 455) — a bill of exchange drawn on a bank payable on demand — and is therefore within the purview of the Sunday statute and likewise may be the subject of forgery. Howard v. State, 17 Ala. App. 628,88 So. 215.

And, "The false making of a bill of exchange, void by statute, will not constitute the offense [of forgery]." Rembert v. State, supra, 53 Ala. at p. 469, 25 Am.Rep. 639.

So, a check given on Sunday, unless for one of the purposes permitted by law as set forth in the Sunday statute, would be void and not the subject of forgery.

Therefore an indictment in charging forgery should show that the instrument (check) was one the forgery of which would be an offense under the law. And if the writing is such " 'as to leave an apparent uncertainty in law whether it is valid or not, a simple charge of forging it fraudulently, etc., does not show an offense; but the indictment must set out such extrinsic facts as will enable the court to see that, if it were genuine, it would be valid.' 2 Bish.Crim.Law, (7th Ed.) § 545; State v. Humphries, 10 Humph. [Tenn.] 442." Dixon v. State, 81 Ala. 61,65, 1 So. 69, 71.

Hence, a forged check, appearing on its face to have been given for one of the permitted transactions enumerated in the statute or to have been delivered on a weekday, would support an indictment for forgery, without averring extrinsic facts showing its legal efficacy.

On the other hand, if such facts do not appear on the face of such a Sunday-dated instrument it would not support an indictment for forgery unless there are alleged circumstances extrinsic to the paper itself showing it is not void, such as that it was given for one of the permissive purposes enumerated in the statute or that while it bore date as of Sunday, as a matter of fact, it was forged or uttered on a secular day. Fomby v. State, 87 Ala. 36, 6 So. 271; Aders v. State,21 Ala. App. 41, 104 So. 882; Crow v. State, 236 Ala. 26,183 So. 907, and cases cited.

All the Justices concur.