Sims v. State

46 So. 493, 155 Ala. 96, 1908 Ala. LEXIS 305

• Court: Supreme Court of Alabama
• Decided: April 21, 1908
• Status: Published

Opinion

ANDERSON, J.

The indictment complied with the statute. Section 4720 of the Criminal Code of 1896, and form 50. It was not, therefore, subject to the demurrer interposed. The receipt therein described is such an instrument as is made the subject of forgery by the statute.

Before secondary evidence is admissible to prove the contents of an instrument in writing, claimed to be lost, it must be shown that every reasonable effort which would result in its production was made without avail. 1 Greenleaf on Ev. 558; O’Neal v. McKinnan, 116 Ala. 606, 22 South. 905; Boulden v. State, 102 Ala. 78, 15 South. 341; Alabama Construction Co. v. Meador, 143 Ala. 336, 39 South. 216. In the case at bar, the witness Lacy testified that the receipt in question was lost or misplaced “while the notes were either in his office or the clerk’s office, and that he had made diligent search for same in his office and could not find it.” From this evidence the receipt could have been-left in the clerk’s office, when Lacy removed the grand jury notes therefrom, yet there is no evidence that the place where the notes were kept in the clerk’s office, and from which the notes ivere removed, was searched. It might be that the original could have been found in the clerk’s office, had a search been made for same. A proper predicate not having been shown, the trial court erred in admitting oral evidence as to the contents of the receipt, over the objection of the defendant.

The judgment of the county court is reversed, and the cause is remanded.

Reversed and remanded.

Tyson, C. J., and Simpson and Denson, JJ., concur, cur.