Curtis v. State

• Decision Date: 05 February 1898
• Citation: 118 Ala. 125,24 So. 111
• Parties: CURTIS v. STATE. [1]
• Court: Alabama Supreme Court

24 So. 111

118 Ala. 125

CURTIS v. STATE. ^[1]

Supreme Court of Alabama

February 5, 1898

Appeal from city court of Talladega; John W. Bishop, Judge.

The appellant, D. B. Curtis, was indicted, tried, and convicted for forgery, the instrument forged being a mortgage executed by one Daniel Cross to the defendant, D. B. Curtis, and attested by Charles Cross; and he appeals. Affirmed.

Brickell C.J., dissenting.

On the trial of the cause, when the state and the defendant announced ready, and jury No. 1 of the regular juries for the week being in the jury box, the solicitor called the court's attention to the fact that two of the jurors who were upon the said jury tried the defendant in November 1896, during the same term of the city court, and that the case against the defendant, which was now to be tried, was in many particulars similar to that case, and that many of the facts were identical; that each indictment charged the defendant with forgery, the parties upon whom the forgeries were practiced being the same in each case; that the instruments alleged to have been forged were traded or transferred at the same time; that one of the parties whose name he is charged to have forged as a witness to each of said instruments was the same, and that the principal facts in reference to the proof of the case would be the same; that while the principals to the two instruments were different in each instance the signature of the principal signed to each paper alleged to have been forged was by mark. Upon the statement of these facts, which were conceded by the defendant to be true, the court excluded the two members of the jury referred to, and to this ruling the defendant duly excepted.

The instrument alleged to have been forged was a mortgage purporting to have been executed by one Daniel Cross, whose signature was affixed thereto by the making of his mark, and this signature purported to have been witnessed by one Charles Cross.

The state introduced as a witness the said Daniel Cross, who testified that he did not execute the instrument alleged to have been forged, nor did he authorize any one else to do so for him; and there was other evidence introduced in behalf of the state tending to show that the defendant was guilty as charged.

Charles Cross, a witness for the state, and whose name was signed as the attesting witness to the instrument alleged to have been forged, testified that he did not sign the mortgage, nor had he ever seen Daniel Cross make his mark to said mortgage, nor to any mortgage to the defendant at any time.

M. L. Smith, a witness for the state, testified that he was a member of the firm of Smith Bros., to whom the mortgage alleged to have been forged by the defendant was transferred; that prior to the transfer of the mortgage to them, Smith Bros. had made considerable advances to the defendant, and had declined to make further advances to them; that subsequent to such refusal, the defendant came to the store of Smith Bros. and transferred the note and mortgage, which was alleged to have been forged, and which had been introduced in evidence, as collateral security, with other notes, and that upon such security, Smith Bros. made additional advances to the defendant. This witness was then asked by the state's counsel the following question: "If about two weeks previous to this transaction, he had any conversation with the defendant in regard to getting these additional supplies, and if so, to state what it was." The defendant objected to this question, upon the grounds, 1st, that it called for illegal and irrelevant testimony, and, 2d, that it called for a conversation that occurred before the alleged date of the mortgage, before the same was transferred to Smith Bros. The court overruled the objection and the defendant duly excepted. The witness then answered, that about two weeks before the transfer of said mortgage to Smith Bros. the defendant asked him as a member of the partnership, to make him additional advances; that he refused to do so unless the defendant would give Smith Bros. additional security; that defendant then said that he had some notes and mortgages of his tenants which he could give him as collateral security, and that he would transfer these to Smith Bros. for the additional advancements; that thereupon the witness agreed to make defendant further advances upon the delivery to them of such collateral security, and that in pursuance of this agreement and arrangement, the defendant transferred to Smith Bros. the mortgage alleged to have been forged. The defendant moved to exclude this testimony of the witness, upon the same grounds stated as grounds of objection to the question. The court overruled the objection, and the defendant duly excepted.

The evidence for the defendant tended to show that the instrument alleged to have been forged was not, in fact, forged; that the mortgage had been executed by Daniel Cross making his mark; that Charles Cross had signed his name thereto as an attesting witness. There was also evidence introduced in behalf of the defendant that the writing in the body of the mortgage was not in the same handwriting as was that in which the name of Charles Cross was written, nor as that in which the name of Daniel Cross was written. The defendant testified that the mortgage of Daniel Cross, which was alleged to have been forged, was executed to him by said Daniel Cross to secure an indebtedness to him; while the testimony for the state tended to show that there was no indebtedness from Daniel Cross to the defendant.

James H. Hayden was introduced as a witness for the defendant, and after testifying that he had been a bookkeeper for many years and had seen many different kinds of handwriting, further testified that he did not know that he had ever seen a paper with a signature that was forged; that he had no skill in comparing forged handwriting with genuine handwriting. Upon this witness being asked to compare the alleged signature of Charles Cross as a witness to the forged instrument with his genuine signature to the paper introduced in evidence, and offered for the purpose of comparison, and to state if the signature of the said Cross was genuine, the state objected on the ground that the instrument containing the genuine signature was not introduced in evidence; and that the witness was not shown to have been an expert. The court sustained the objection, and the defendant duly excepted.

Upon the introduction of all the evidence, the court, at the request of the solicitor, gave to the jury the following written charges; and to the giving of each of these charges the defendant separately excepted: (1) "If the evidence shows that a person knowingly and willfully does an act the probable consequences of which would be to injure or defraud the jury may infer a fraudulent intent." (2) "The jury may infer that the defendant did himself forge the purported instrument, if they believe beyond a reasonable doubt from the evidence that he uttered and published it as true, knowing it to have been forged." (3) "The mere fact, if it be a fact, that Cross was indebted to Curtis would not be sufficient to authorize Curtis to sign the name of Cross to the mortgage in controversy." (4) "The court charges the jury that if the defendant signed the name of Charles Cross and the name of Daniel Cross and made his mark thereto with the intent to defraud, express or implied without the knowledge and...