Dixon v. State

• Decision Date: 05 January 1887
• Citation: 1 So. 69,81 Ala. 61
• Parties: DIXON v. STATE.
• Court: Alabama Supreme Court

1 So. 69

81 Ala. 61

DIXON v. STATE.

Supreme Court of Alabama

January 5, 1887

Appeal from circuit court, Marengo county.

Indictment for forgery.

The grand jury of said county found a true-bill against the defendant, at the fall term, 1885, of the said circuit of said county. The indictment charges that the said defendant "did forge a written instrument, as follows:

"'APRIL the 28th, 1885.

"'DEAR SIR: I have nothing to do with Venie Dixon patch cotton they are welcome to it and do what they please with it.

"'W. W. ROBERTS.

W. W ROBERTS.'

"'& all so Mary Ann the same.

-"Meaning thereby that W. W. Roberts, the landlord, waived his lien on the 'patch cotton' of one Venie Dixon," etc. The facts of the case appear in the opinion.

McCaa & Woolf, for appellant.

T. N. McClelland, Atty. Gen., for the State.

STONE C.J.

The testimony in this record tends to prove that W. W. Roberts, during the year 1885, was landlord, and Kirge alias Cap Dixon was his tenant living on his lands; that Veonie or Vionio Dixon, wife of Kirge, lived with him; that, under an agreement with Roberts, Veonie was cultivating a patch on his lands, she to have one-half the crop, and he, Roberts, the other half. Such was the state of facts, when on April 28, 1885, the instrument in writing was drawn and uttered, which the indictment charges was a forgery. The defendant admitted the writing of the paper, but contended he had authority therefor from Roberts, whose act it is purported to be. The jury, by their verdict, negatived the authority claimed.

It is contended for appellant that the writing set forth in the indictment is not such an instrument as can be the subject of forgery. 1 Bish. Crim. Law, (7th Ed.) § 523, says: "Forgery at the common law is the false making, or materially altering, with intent to defraud, of any writing, which, if genuine, might apparently be of legal efficacy, or the foundation of a legal liability." The principle thus stated by him is supported by many able authorities collected in the note. And Whart. Crim. Law, § 680 et seq., fully sustains him. See, also, Rembert v. State, 53 Ala. 467; Hobbs v. State, 75 Ala. 1. It cannot be denied that the instrument set forth in the indictment in this case would, if genuine, be of apparent legal efficacy,-efficacious as an authority to incumber or dispose of the entire "patch-cotton" to which it refers.

It is objected that Veonie and Mary Ann, whose "patch-cotton" is mentioned in the writing, were married women, who could make no binding contracts, and that, under the proof in the cause, the writing was, for that reason, worthless, inoperative, and void; and, inasmuch as forgery cannot be predicated on a void instrument, the general charge asked by defendant ought to have been given. To this it may be answered that it does not appear that said "patch-cotton" was the property of the wives. As a rule, the earnings of the wife are the property of the husband. Moreover, if the crop was the separate property of the wife, she and her husband could dispose of it by absolute sale. Waller v. Booker, MS. present term; Linam v. Reeves, 68 Ala. 89; Blythe v. Dargin, Id. 370; Falk v. Hecht, 75 Ala. 293.

Section 4340 of the Code of 1876, omitting clauses and words not pertinent to this case, reads as follows: "Any person who, with intent to injure or defraud, falsely makes, *** forges, counterfeits *** any *** instrument, being or purporting to be the act of another, by which any right or interest in property is *** in any way changed or affected *** the forgery of which does not constitute forgery in the first degree under section 4332 of this Code, *** must, on conviction, be adjudged guilty of forgery in the second degree." If the said Roberts was landlord, and if the "patch-cotton" referred to in the writing was grown on land rented from him, he having a part interest in...