Lessley v. State

94 So. 262, 18 Ala. App. 657, 1922 Ala. App. LEXIS 289

• Court: Alabama Court of Appeals
• Decided: June 13, 1922
• Docket: 6 Div. 990.
• Status: Published

Opinions

The defendant was charged with forging the following instrument:

"Tuscaloosa, Ala., July 12th, 1920. "The First National Bank 61-70 of Tuscaloosa, Ala.

"Pay to the order of W.B. Lessley $2,901.60, twenty-nine hundred Won 60/100 Dollars. X X "Wit Bob Lila Casper. "W.B. Lessly."

The sole question presented for review upon the merits of the prosecution is whether the check above set out, being signed by mark and attested by the payee, who received the money, is the subject of forgery. This question was raised in the trial court by demurrer, objection to testimony, and by refused charges, and is fairly presented to this court.

To authorize an indictment for forgery the instrument must either appear on its face to be, or be in fact one which, if true, would possess some legal validity, or be legally capable of effecting a fraud (Dixon v. State, 81 Ala. 61, 1 So. 69), or, as expressed in the common-law definition of forgery, "might apparently be of legal efficacy or foundation of a legal liability." Bishop, 1 Crim. Law (7th Ed.) § 522.

The insistence is here made that, as the check is signed by mark and attested by defendant, who was the payee named in the check, on its face the signature was void and of no effect, and therefore not calculated to deceive. For the purposes of the law merchant a check is defined to be (Code 1907, §§ 5132, 5075) "an unconditional order in writing addressed by one person to another, signed by the person giving it." etc., and when the check is to circulate as a bill of exchange in the marts of trade, to be valid, if signed by mark by a person unable to write, it must be witnessed as required by statute (Flowers v. Bitting, 45 Ala. 448). This is not a requirement of the statute, to the effect that a party having money in a back may not withdraw it or order it to be paid to another except in writing signed by the party, as between the bank and its depositor. And where it is not so required by statute, such payment may be effected by an instrument signed by mark, although not witnessed. Bickley v. Keenan, 60 Ala. 293; Bates v. Harte, 124 Ala. 427, 26 So. 898, 82 Am. St. Rep. 186; Jackson v. Tribble, 156 Ala. 480, 47 So. 310. If the party could write his name he could sign by mark, if he so desired and so adopted it. Smith v. Vaughn, 206 Ala. 9, 89 So. 303; Jackson v. Tribble, 156 Ala. 480, 47 So. 310. If, therefore, the check had been genuine, and the drawers had actually made their marks to the check or order, such check or order would have imported a liability upon which suit could have been maintained and judgment rendered, unless the drawers by proper defense had shown that at the time the order was so signed they could not read or write; the burden resting upon them to make this proof. Or, if suit had been brought by the drawers against the bank for and on account of the deposit, such check or order, proven to be genuine, would be admissible in evidence to show that the money had been paid out under the direction of the drawers, and the drawers would not be permitted to recover over their admitted order to pay. Flowers v. Bitting, 45 Ala. 448.

If then the order or check is not such instrument, as between the bank and its depositor is required by statute to be signed in order to bind the depositor and protect the back in the payment of the depositor's money, the check or order is the subject of forgery. Bickley v. Keenan Co.,60 Ala. 293; Barnett v. State, 89 Ala. 165-171, 7 So. 414; Jackson v. Tribble, 156 Ala. 480, 47 So. 310. If it is such an instrument as is required by the statute to be signed, upon its face it appeared to be a signature at common law, importing liability, in the absence of evidence there present, that the drawer could not write his name. If it was a void signature, it would still be admissible as evidence in a proper suit, as an adminicle of documentary proof, in either of which events it is the subject of forgery; all that is required being that the party on whom the forgery is perpetrated should be exposed to apparent risks. 11 Wharton's Crim. Law, § 900, note 7.

The court did not err in its several rulings bearing on the foregoing questions.

We note, however, an error in the judgment, in that defendant was allowed bail in the sum of $5,000 pending appeal. The sentence of the law being that he be imprisoned in the penitentiary for more than five years, bail should not be allowed, and the sheriff of Tuscaloosa county is hereby ordered to at once take the defendant into his custody, and to so detain him until he may be delivered to the proper officials.

There is no reversible error in the record, and the judgment is affirmed.

Affirmed.

BRICKEN, P.J., dissents.