Agee v. State

113 Ala. 52

• Court: Supreme Court of Alabama
• Decided: November 15, 1896
• Status: Published

Opinion

McCLELLAN, J.

The indictment was not open to the objection taken by the demurrer. The instrument alleged to have been falsely made was, as set out in the indictment along with the averment of the intention of the party making the paper, and its effect, ‘ ‘a writing which, if genuine, might apparently be of legal evidence or the foundation of a legal liability.”-Rembert v. State, 53 Ala. 467.

The instrument set out in the indictment is an order on J. T. Dumas in favor of King Jackson for goods. It directs the bill for the goods to be charged to E. O. Raines “on merchindise.” The instrument offered in evidence was an order in favor of “Kinge Jackison, ” and directs the bill to be charged to E. O. Raines “on mchin Dise.” There was objection to the paper offered being received in evidence, on the ground that it was not the paper laid in the indictment. The objection was overruled. It should have been sustained. ' Not to speak of the variance last noted, that between the name of the person in whose favor the order was alleged to have been drawn and the name of such person in the paper offered — the one being “King Jackson” and the other “Kinge Jaclcison” — as we have seen, was fatal: the names are palpably not the same nor of the same sound. And the question, having relation to the accuracy and sufficiency of the description of the alleged forged instrument in the indictment, and being determinable upon a comparison of the instrument set out in the indictment with- the instrument offered in evidence, was for the adjudication of the court on defendant’s objection to the admissibility of the paper in evidence.-State v. Fay, 65 Mo. 490; Brown v. People, 66 Ill. 344; Porter v. State, 15 Ind. 433; McClellan v. State, 32 Ark. 609; Westbrook v. State, 23 Tex. App. 401.

Had the indictment followed the writing as to the name of the person in whose favor the order was drawn, and then alleged that King Jackson was thereby intended, the question would have been not unlike that considered in Baysinger v. State, 77 Ala. 63; but as.in fact presented the two cases are wholly unlike, and what is there said as to the question being one for the jury, as also what is said in Underwood v. State, 72 Ala. 220, as to idem so nans, where the name of the owner of stolen property was mis-spelled, being a question for the jury, can have no pertinency here.

The trial court also erred in giving the following instruction : “If the jury believe, beyond all reasonable doubt from the evidence in the case, that the defendant wrote the order in evidence in this case, or procured some other person to write the same for him, in Wilcox county, and within throe years before the finding of the indictment, then they must convict him.” This charge withdrew from the jury all consideration of one of the ingredients of the offense alleged, the intent to defraud, which was a matter of inference from the facts before them, to be drawn or rejected by them, as those facts might seem to them to require.-Gooden v. State, 55 Ala. 178.

There was evidence before the jury from which the venue of the offense could have been found; and the court, therefore, properly refused charges requested by the defendant which proceeded on the theory that there was no evidence that the offense was committed in Wilcox county.

The court, in our opinion, did not err in its rulings on the testimony of Raines to which exceptions were reserved. All the circumstances attending the conversation between Raines and the defendant go to show that the statements of the latter therein made were wholly voluntary, and Raines, in substance and effect, testifies that he made no threats nor offered any inducements to elicit a confession.

Other questions on the record will not arise hereafter in the case, and need not be now considered.

Reversed and remanded.