Martin v. State

89 So. 845, 18 Ala. App. 184, 1921 Ala. App. LEXIS 156

Opinions

SAMFORD, J.

On the trial, after the state had made out its case, a part of which was the introduction in evidence of the check alleged to have been forged by the defendant, the defendant introduced as a witness in his behalf Mrs. C. W. Renfro, who testified to a state of facts tending to establish an alibi for defendant. On cross-examination of this witness, the state was permitted, over the timely objection and exception of defendant, to show that about the time of the alleged forgery the defendant had given her a check for $1,200, and, .upon the witness identifying the check, over the objection and exception of defendant, it was intro■duced in evidence, with this statement from the court:

“I think it would be admissible for the purpose of throwing light upon the intent as to the other transaction, but for that purpose only, and for that purpose only I will allow the question to be answered.”

This cheek was drawn on the First Nation-al Bank of Birmingham payable to witness, and was signed by the defendant in his own name; there being no pretense that this check was a forgery, and no evidence that it was given with intent to defraud.

[1,2] In Kirby v. State, 16 Ala. App. 467, 79 South. 141, and Kirby v. State, 17 Ala. App. 151, 82 South. 641, this court held, on authority of severál cases there cited, that:

“Evidence that the accused had forged * * * other instruments similar to the one described in the indictment is admissible * * * for the purpose of showing the intent with which the act charged was committed”

—and we still hold to that view as being •sound, but it has never been held, so far as we can find, that a check, not a forgery, may be introduced in evidence over the timely objection of the defendant on trial for forgery, to show his intent in forging the instrujnent laid in the indictment. On the contrary, in King v. State, 8 Ala. App. 239, 62 South. 374, this court, on the authority of Moon’s Adm’r v. Crowder, 72 Ala. 88, held:

“Where the prosecution was for forging a check, a genuine check made by the alleged drawer of the forged check was not admissible in evidence.” King v. State, 8 Ala. App. 239, 62 South. 374.

[3] Neither was the check admissible for a comparison of handwriting. After it was legally in, it might be used for that purpose, but, being illegally admitted in evidence, its only tendency was to prejudice the defendant’s ease.

The other rulings of the court were free from error, but for the error pointed out the judgment is reversed, ánd the cause is remanded.

Reversed and remanded.

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