Lessley v. State

The appellant was convicted in the court below of the criminal offense of forgery in the second degree, and from the judgment of conviction pronounced against him he prosecutes his appeal to this court.

The indictment preferred against the defendant in the trial court charged him with the forgery of a certain alleged check, which is set out in the indictment, and which appears to be set out in hæc verba in the record before us on appeal.

The defendant demurred to the indictment, and by said demurrer challenged the apparent validity of the instrument set out in the indictment as a check: First, because said alleged check did not purport to be signed by the makers thereof; second, because the signatures to said alleged check purported to be by mark, and the same did not purport to be witnessed; and, third, because the drawers of said alleged check could not write their names, and their signatures purported to be by mark, and said alleged check showed on its face that the only attesting witness to the signatures by mark of the alleged drawers of said check was the payee of said check. The trial court overruled said demurrers, and the defendant excepted.

The same legal questions were raised by the defendant upon his trial through appropriate objections to the introduction of said alleged check in evidence, and by motions to exclude the same from the consideration of the jury, and also by his request in writing for the general charge, first, to the indictment in its entirety, and, second, to the second count thereof.

Whether a written instrument alleged to be forged would create a legal liability is a question of law, and was therefore properly addressed for the judicial determination of the trial court. Lampkin v. State, 105 Ala. 1, 16 So. 575.

Section 6910, Code 1907, defines forgery in the second degree, and, under the Code, as the same has been repeatedly constructed by our Supreme Court and by this court, it is not every written instrument that may be the subject of forgery. Before there can be any forgery the instrument alleged to be forged must be such as, either upon its face, or by reason of attendant circumstances, appears to have the capacity to injure or defraud. It must be such an instrument which, if genuine,might apparently be of legal efficacy or the foundation of alegal liability. Such is the construction of the repeated decisions of our courts of last resort. Rembert v. State,53 Ala. 467, 25 Am. Rep. 639; Hobbs v. State, 75 Ala. 1; Dixon v. State, 81 Ala. 61, 1 So. 69; Burden v. State, 120 Ala. 388,25 So. 190, 74 Am. St. Rep. 37; Everage v. State, 14 Ala. App. 106,71 So. 983.

It must be conceded that a check, or any other written instrument, of apparent legal efficacy, and capable, upon its face of working injury, or possessing the power to defraud or of creating a legal liability, is the subject of forgery. This is true whether the instrument purports to be signed by the maker thereof in his own handwriting or by mark.

The demurrer filed to the indictment challenges the alleged check upon the ground that it does not purport to have been signed by the makers thereof by mark in form and manner as provided by section 1 of the Code of 1907.

It is first insisted by the state that the indictment was not subject to the demurrer interposed because said indictment is in Code form and the alleged check is set out in the indictment in hæc verba, and that the designation of the instrument as "a check" is immaterial. This insistence would be correct if the instrument itself was of apparent legal efficacy or effect, and not wanting in the capacity to work injury, or to defraud, or to create a legal liability; on the contrary, if the alleged instrument is without the characteristics specified, then the fact that it is set forth is its identical form and words in the indictment will not give the indictment the legal effect of charging the offense of forgery. The precise question was decided in the case of Fomby v. State, 87 Ala. 36, 6 So. 271, where it was said:

"It is well established that an indictment which merely sets out a writing, on which the forgery charge is predicted,wanting in the legal requisites to its validity, or so imperfect or incomplete that it cannot be the foundation of a legal liability, and its real meaning and terms are not intelligible from the words and characters used, does not charge an offense."

Section 4720 of the Code of 1896, now incorporated in section 6910 of the Code of 1907, was construed by the Supreme Court, in the case of Burden v. State, 120 Ala. 388, 25 So. 190, 74 Am. St. Rep. 37, with respect to the present insistence of the state, and it was there said:

"The statute is not open to such interpretation, we think; and we reiterate, with respect to the present form of the provision what has been many times declared by this court: A writing to be the subject of forgery must either upon its face or by reason of attendant circumstances have, upon theassumption of its genuineness, a capacity to injure ordefraud."

In the case of Hobbs v. State, 75 Ala. 1, it was said:

"A writing, void on its face because of the want of legalrequisites to its validity, is not the subject of an indictment for forgery, in consequence of its incapacity to effect fraud. Illustrations are an unattested will of lands, and a conveyance of lands by a married woman, not purporting to be executed asthe law may appoint."

So then the fact that the alleged check is set out in the indictment does not give life to the indictment if said check was void on its face because not apparently signed by the makers thereof.

It is next insisted by the state that the names of the drawers of the check are not shown by said instrument to have been subscribed by mark. The suggestion is that the usual way for a person to sign a paper by mark is for a cross mark to be made, and the words "his mark" or "her mark" to be shown or written in connection with the cross mark. This contention of the state is, we think, untenable. The instrument set out in the record clearly shows that a cross mark is placed just above the name "Bob," and also just above the name "Lila" of the signatures to the alleged check, and in so far as the manner of affixing the mark is concerned the method adopted was in the manner prescribed by the Code; that is, the cross mark in each instance was affixed near the written names of the purported signers of the alleged check. The absence of the words "his mark" and of "her mark" is, we think immaterial. The precise question was before the Supreme Court in the case of Harwell et al. v. Zimmerman, 157 Ala. 473, 47 So. 722, and was there decided against the present insistence of the state.

It is finally insisted by the state that a check is not such a written instrument as requires a witness to its execution. There is no statute in this state that requires a check to be witnessed. There is a statute which defines a check, and under the statutory definition such instrument must be in writing,and must be signed by the maker thereof. This brings us to a consideration and decision of the real question in this case. The written instrument set out in the indictment is a check if it is anything. It is a check if it is not void. It is a check if it is not wanting in the legal requisites to its validity. If the instrument in question is void on its face because ofthe want of legal requisites to its validity, then it is not the subject of an indictment for forgery. Hobbs v. State, supra.

A check is a bill of exchange drawn on a bank and payable on demand. Code of Alabama 1907, § 5132.

A bill of exchange is an unconditional order in writing, addressed by one person to another, and signed by the person giving it, requiring the person to whom it is addressed to pay on demand, or at a fixed or determinable time, a certain sum of money to order or to bearer, Code of Alabama 1907, § 5075.

A check, therefore, as defined by the Code, is an unconditional order in writing drawn on a bank, payable on demand, and signed by the person giving it.

Section 1 of the Code of Alabama 1907 declares the meaning of certain words used in the Code. Among others are the words "signature" or "subscription," and as to these it is said:

" ``Signature' or 'subscription' includes mark when the person cannot write, his name being written near it, and witnessed bya person who writes his own name as a witness."

The statutory definition of signature or subscription is limited to these words when used in the Code and to instruments or contracts which the Code, or some statute not incorporated in it, requires to be signed or subscribed by the maker, or makers, thereof. A check, under the Code, being an instrument in writing which the Code requires to be signed by the maker thereof, the statutory definition of signature or subscription, as used in the code, will apply to checks. Therefore, whenever a person who cannot write his name undertakes to draw a check, his name must be subscribed to the check by some person who can write, and the maker of the check must affix his mark near his, or her, written name, and the making of such mark must be witnessed by a person who can and does write his own name as a witness. Not only must the mark of the maker be affixed to the instrument, but it must be witnessed by a person who writes his own name as a witness. Both the mark and the witness thereto are essential to a valid signature by mark of persons who cannot write to all instruments which, under the Code of this state, must be in writing and signed by the maker thereof, and not acknowledged in the manner prescribed by law.

In the case of Bickley v. Keenan, 60 Ala. 293, the validity of a signature to an instrument in writing under the Code is illustrated in the following language:

"The statutory provision we are considering does not negative expressly the validity of instruments signed or subscribed by mark, and not attested; yet, as it introduces a new rule in reference to subscriptions or signatures, we think it must be construed as implying a negative of the sufficiency of unattested signatures or subscriptions by mark, of all instruments falling within its purview. When a statute limits a thing to be done in a particular manner, it included in itself a negative; and the negative is, that it shall not bedone otherwise. The limitation exists, whenever the statute prescribes the particular manner in which the thing must be done."

We have seen that a writing, void on its face because of the want of legal requisites to its validity is not the subject of forgery. Hobbs v. State, 75 Ala. 1. supra; Fomby v. State,87 Ala. 36. 6 So. 271, supra, and Burden v. State, 120, Ala. 388, 25 So. 190, 74 Am. St. Rep. 37, supra.

Were the signatures by mark to the alleged check in question of persons who could not write witnessed by a person who could write his own name as a witness, within the meaning intent, and purpose of section 1 of the Code? Was W.B. Lessley, the payee of the alleged check, a competent witness thereto so as apparently to make the signatures by mark of the alleged makers thereof their signatures in fact and in law? As supporting the contention that the signatures in question were of apparent legal efficacy, we are cited by the state to the cases of McGowan v. Collins, 154 Ala. 299, 46 So. 228, and Jackson v. Tribble, 156 Ala. 480, 47 South, 310. Each of the cases cited relates to a written instrument not required, either by the Code or any statute of this state, to be in writing and subscribed by the maker thereof, They relate solely to common-law private writings, and to this class of instruments we have already observed that a signature by mark, though not witnessed, was good.

In the case of Houston v. State, 114 Ala. 15, 21 So. 813, it was said:

"It was formerly unnecessary that mortgages of personal property should be in writing, and it has been expressly held in this state that written mortgages of personal property which were signed by the mortgagor making his mark, and attested by two witnesses making their mark, was sufficiently valid to enable the mortgagee to base his claim to the property conveyed therein."

Such was the law with reference to chattel mortgages until the act approved January 22, 1885, now incorporated in the Code of 1907 as section 4288, and which provides that "a mortgage of personal property is not valid unless made in writing and subscribed by the mortgagor." Since the time when the statute which required a chattel mortgage to be in writing and subscribed by the mortgagor went into effect, a mortgage of personal property by one who is unable to write his name is subscribed by the mortgagor —

"only when he has made his mark near his name subscribed for him, and this making of his mark has been witnessed by a person who can and does write 'his own name as a witness.' Without this attesting witness who writes his name as a witness, there can be no valid execution of the mortgage by such mortgagor."

We know of no statutory authority requiring a chattel mortgage to be witnessed in any case where the maker subscribes his own name thereto. It is only in cases where the maker of such an instrument as unable to write his name and his signature to such instrument is made by mark that a subscribing witness to the signature by mark is required.

In Penton v. Williams, 150 Ala. 153, 43 So. 211, it was held that a note containing a waiver of exemptions, the name of the maker of which and whose mark had been signed and made by the payee, but without a subscribing witness, was not subscribed by the party making it, under section 1 of the Code, and that said note was not admissible in evidence, because, under section 4232 of the Code a waiver of exemptions must be in writing, subscribed by the party making the same. The line of distinction is clearly demarked, and has always been maintained in the construction of the statute under consideration. We can only repeat that if the instrument in question is one which, under the Code or some statute of this state, must be in writing and subscribed by the maker thereof, then to every such instrument a valid signature by mark can only be made when the same is attested by a witness who can and does subscribe his name thereto as a witness, or when the execution of the instrument is acknowledged before a proper officer in manner and form as required by law.

Whether or not the alleged check in question was apparently signed by Bob and Lila Casper, the alleged makers thereof, within the intent, meaning, and purpose of section 1 of the Code, depends upon the inquiry as to whether or not W.B. Lessley, the payee of said alleged check, was a competent witness thereto.

The case of Morris v. Bank of Attalla, 153 Ala. 352,45 So. 219, cited by the state, was one where a stockholder in a corporation was a witness to a mortgage payable to the corporation, and it was held in that case that the fact that the subscribing witness to the signature by mark was a stockholder in the mortgagee corporation did not disqualify him from signing as a witness to the mortgage. In that case, the stockholder was not the payee of the mortgage, nor was he individually a party to it. The authority cited affords no answer to the question here raised and insisted upon.

In the case of Coleman v. State, 79 Ala. 49, it was said:

"No party to an instrument is a competent attesting witnessto it, unless made so by statute; and this rule is not affected by the alteration of the former law made by section 3058 of the Code of 1876, which rendered parties and interested persons competent witnesses in certain cases."

It may be observed that in so far as the instant case is concerned, section 4007 of the Code of 1907 has not changed or enlarged the construction placed upon section 3058 of the Code of 1876, and it appears that this judicial construction, as announced in Coleman's Case, supra, has become firmly established in the rules of evidence and procedure that obtain in this state.

In the case of Seibold v. Rogers, 110 Ala. 440, 18 So. 312, a certain chattel mortgage was offered in evidence. The mortgage purported to have been attested by two witnesses, of whom the mortgagee was one. It also appeared that the name of the other attesting witness to the instrument was not written by said witness, but the name of said witness was written by the mortgagee. It was held that the mortgagee could not be an attesting witness to the instrument, as he was a party thereto; it was further held that the second subscribing witness was not in fact a witness because his name as such witness had been written by the mortgagee; and it was further held that theinstrument should be treated as having no attesting witnesses.

In the case of Barksdale v. Bullington, 194 Ala. 624,69 So. 891, it was said:

"The attestation by one who does write his name is a part ifthe signature of the maker who cannot write, and signs by hismark. So in Houston v. State, 114 Ala. 15, 21 So. 813, it was held that an attesting witness who signed by mark did not properly prove the execution. The provision of section 4288 of the code that a mortgage of personal property is not valid, unless made in writing and subscribed by the mortgagor, can be complied with only as required by section 1 of the Code."

In the case of Houston v. State, 114 Ala. 15, 21 So. 813, the reason and sense of the statutory requirements we are considering is announced in the following language:

"The very purpose of the statute in requiring that the making of a mark by the mortgagor in the execution of the mortgage should be attested by a witness who could write his name is to prevent injustice or fraud being committed, and is intended asa security against clandestine conveyances. It is for the protection of the one who executes the instrument."

If the payee of a check may be the attesting witness to the signature by mark of the maker of the check, where is the sense or reason for the requirement of the statute that the signature by mark of the maker shall be attested at all? To hold that the payee of such an instrument as is set out in the indictment in this case is a competent witness to the signatures by mark of the makers of the instrument would be to defeat and emasculate the requirement of the statute under consideration, and would be to ignore the repeated decisions to the effect that a party to an instrument is not a competent witness to it. The conclusion is irresistible that W.B. Lessley, the payee of the alleged check, was an incompetent witness thereto.

The Code requires that such an instrument as is set out in the indictment must be in writing, and must be subscribed by the maker. The makers in the instant case could not write their own names. They could only sign by mark, and the attestation of one who could and did write his name as a witness was a necessary and essential part of the signatures of the makers who purported to sign their names by mark. The payee of said instrument was incompetent to become an attesting witness to the signatures thereto, and the instrument must be treated as having no attested witness (Seibold v. Rogers, supra), and, having no attesting witness, there was no signature to said instrument. It was not apparently signed by the makers thereof, as required by section 1 of the Code, and does not purport to be so signed, and was void upon its face, and was wanting in the capacity to inflict injury or create a legal liability. Under our repeated decisions, said instrument, signed in manner and form as it purports to be signed, was not the subject of forgery. We, therefore, hold that the trial court erred: First, in overruling the defendant's demurrers to the indictment; second, in admitting said alleged check in evidence; and, third, in refusing the affirmative charge requested in writing by the defendant.

The trial court's attention is directed to the statute, Acts 1911, p. 113. Under the sentence pronounced by the court upon this defendant, it being a minimum of 6 years and a maximum of 10 years, that portion of the judgment entry which provides that defendant pending this appeal may enter into a bond of $5,000 is without authority of law. Under the terms of the statute supra, if the maximum sentence imposed exceeds 5 years, the defendant must be held in custody pending appeal. See, also a Rogers v. State, 17 Ala. App. 175, 83 So. 359.

The foregoing expresses the views of BRICKEN, P.J., who if of the opinion that for the errors pointed out the judgment appealed from should be reversed, and the cause remanded. The majority of the court, however, entertain different views, and have reached the conclusion, contra. SAMFORD, J. (for the majority) in an opinion affirms the judgment of the lower court. MERRITT, J., also expressed his views in an opinion in which he concurs in the conclusion reached by SAMFORD, J.

It follows therefore that the judgment appealed from must be affirmed, but from this conclusion BRICKEN, P.J., dissents.