Benson v. State

124 Ala. 92

Opinion

SI-IABPE, J.

— Without an averment that “The Farley National Bank-of Montgomery, Ala.,” the draAvee of the forged check, was an “incorporated bank.or banking company” the indictment under which the petitioner Avas convicted charged forgery only in the second degree. Code § § 4719, 4720.

The fact of the draAvee bank’s incorporation being a necessary element in the higher degree of forgery the lade of its averment is not supplied by a mere presumption of its corporate existence arising from the name used to designate the draAvee, since such presumption, if any exists, is not a conclusive one.

On the collateral inquiry raised by habeas corpus proceedings it Avas not permissible to go behind the judgment and shoAv by proof addressed to the merits of the cause that the defendant Avais improperly convicted. Kirby v. State, 62 Ala. 51.

The verdict finding the defendant guilty as charged in the indictment, Avas an ascertainment that he aauis guilty of forgery in the second degree, and the sentence and judgment folloAving the verdict in that respect were proper. The judgment appealed from will be affirmed.