Gardner v. State

96 Ala. 12

• Court: Supreme Court of Alabama
• Decided: November 15, 1892
• Status: Published

Opinion

COLEMAN, J.

The defendant was convicted of the offense of forgery, and sentenced to the penitentiary. The first exception reserved is as to the admission in evidence of the instrument charged to have been forged, upon the grounds that there is a variance between the instrument and that described in the indictment. The bill of exceptions does not pretend to set out the instrument itself, either in verba, or substantially.

A paper writing attached to the record, when there is no reference to it in the bill of exceptions by which it may be identified as the instrument introduced in evidence, and no order of the judge, as provided in Rule 23, page 803 of the Code, directing that the original paper be sent up for the inspection of this court, can not be considered on appeal. See Rule 23, supra; Pruitt v. McWhorter, 74: Ala. 315; Wright v. Dunklin, 83 Ala. 317. But, if we could consider it, the instrument sent up is clearly the subject of forgery within the express provision of the statute (Code, § 3852); and there is no material variance, if there is any whatever, between it and that described in the indictment. — Baysinger v. State, 77 Ala. 63; Allen v. State, 74 Ala. 559.

It was competent for the State to prove that, when the defendant presented the order, he said, “Here is an order from Mr. King.” Such a statement tended to show that the name attached to the order, so far as it affected the defendant, was properly stated in the indictment. — Baysinger State, supra, p. 65.

It was competent for the witness Boss to testify that he “regarded the defendant as dieing perfectly sane.” The bill of exceptions states that, “before giving this opinion, the witness stated the means of his information and the special facts and circumstances.” The “means and facts and circumstances” are not set out] and we can not presume that they were not sufficient to authorize the introduction of the evidence. The rule uniformly held in this State was fully complied with, before the introduction of the testimony. — Ford v. State, 71 Ala. 397; In re Carmichael, 36 Ala. 514; Norris v. State, 16 Ala. 778; Parsons v. State, 81 Ala. 597. The only plea of the defendant was that of “not guilty.” — Maxwell v. State, 89 Ala. 151.

An exception was taken to the following portion of the charge given by the court to* the jury: “What was the defendant’s intentent in this matter ? That is, if you find that the defendant did utter this instrument you must find from all the evidence.”' It has been settled law in this State too long to be now questioned, that an indictment for forgery under our statute will be sustained, and a conviction may be properly had, upon proof that the defendant with fraudulent intent and guilty knowledge uttered the forged instrument. — Bishop v. State, 30 Ala. 39; Harrison v. State, 36 Ala. 251; McGuire v. State, 37 Ala. 162; Hobbs v. State, 75 Ala. 6.

A disconnected sentence or _ part of a charge, although it does not describe all the constituents of the offense, will not of itself work a reversal. Where the whole charge given by the court ex mero maty, is set out, the several parts must be construed together, and each part construed in the light of its context. Where, as in the present case, a mere passage or statement of the charge is excepted to, omitting the remainder of the charge, we must presume that the" court had properly charged the jury in regard to the fraudulent intent or purpose which actuated the defendant, and followed it by the statement to which the exception is reserved. — Montgomery & Eufaula R. R. v. Stewart, 91 Ala. 427; Williams v. State, 83 Ala. 70; Marx v. Lienkauff, 93 Ala. 464.

Evidence of the condition of the defendant’s mind, both before and after the commission of the offense, is admissible. McAllister v. State, 17 Ala. 437; 2 Greenl. Ev. § 371. McLean v. The State, 16 Ala. 672.

We find no error in the record, and the judgment must be affirmed.