Brown v. State
| Decision Date | 19 March 1942 |
| Docket Number | 4 Div. 243. |
| Parties | BROWN v. STATE. |
| Court | Alabama Supreme Court |
Thos S. Lawson, Atty.Gen., and John W. Vardaman, Asst. Atty. Gen for petitioner.
M Sollie, of Ozark, and W.L. Lee and Alto V. Lee, III, both of Dothan, opposed.
The State contends that when a forgery of an instrument is charged in an indictment as a warrant on the county treasurer signed by the probate judge and indorsed by two named persons, or the utterance of such instrument, a conviction can be sustained though the warrant was genuine, if defendant merely forged the names of the indorsers or uttered it with knowledge that their names had been forged.
But if the instrument as a whole, including the indorsements, is alleged to have been forged, some authorities hold that the indictment is sustained on proof that it was the indorsements only which were forgeries, when the initial instrument is genuine in all respects. State v. Hearn, 115 Ohio St. 340, 154 N.E. 244; Saucier v. State, 102 Miss 647, 59 So. 858, Ann.Cas.1915A, 1044; State v Waterbury, 133 Iowa 135, 110 N.W. 328; Akin v. State, 86 Fla. 564, 98 So. 609.
But there are very respectable authorities which hold that the indictment should specify the indorsement, if that is the claim, when the instrument itself is genuine. Cochran v. State, 115 Tex.Cr.R. 201, 30 S.W.2d 316; see other authorities cited by the Court of Appeals.
But our statute, Title 14, section 200, Code of 1940, defines forgery in the second degree, in part, as the forgery of a bond, bill--single, bill of exchange, promissory note, or any indorsement thereof, and in the statute the utterance of a forged indorsement is specially mentioned. The statutes quoted in the cases relied on by the State do not specify as a separate offense the forgery of an indorsement on such an instrument. Everyone admits that the indorsement itself is a separate contract and is the subject of forgery, but it is said in those authorities that it is not so distinct and independent as not to be embraced in the charge of forgery of the instrument as a whole, setting it out as thus indorsed.
While the indorsement is not independent, it is a separate and distinct and different contract from any other feature of the instrument. Our statute emphasizes that distinction and that the forgery of an instrument is a different offense from the forgery of an indorsement of it. Under our statute, ...
To continue reading
Request your trial
-
Lunceford v. City of Northport, 6 Div. 664
...that unnecessary allegations need not be proven. See Brown v. State, 30 Ala.App. 339, 343, 7 So.2d 24 (1941), cert. denied, 242 Ala. 485, 7 So.2d 28 (1942) ("The rule in our State is that an allegation in an indictment which is but mere surplusage may be disregarded--it is immaterial for an......
-
Smith v. State
...that unnecessary allegations need not be proven. See Brown v. State, 30 Ala.App. 339, 343, 7 So.2d 24 (1941), cert. denied, 242 Ala. 485, 7 So.2d 28 (1942) ("The rule in our state is that an allegation in an indictment which is but mere surplusage may be disregarded--it is immaterial for an......
-
Evans v. State
...what is intended." Accord, Ex parte Martin, 354 So.2d 1152 (Ala.1977); Ex parte Allen, 241 Ala. 137, 2 So.2d 321 (1941); Brown v. State, 242 Ala. 485, 7 So.2d 28 (1942). These same considerations apply to Count Three, which likewise indicts Evans for murder committed while he was "engaged i......
-
Wyatt v. State
...592, 44 So. 871. Of course, the indictment seeking to charge a forgery of an endorsement of an instrument should so allege, Brown v. State, 242 Ala. 485, 7 So.2d 28, as the instant indictment Therefore, the endorsement alleged to have been forged purported to be the act of Dewey Robinson, a......