Everage v. State

• Decision Date: 18 May 1916
• Docket Number: 4 Div. 438
• Parties: EVERAGE v. STATE.
• Court: Alabama Court of Appeals

71 So. 983

14 Ala.App. 106

EVERAGE v. STATE.

4 Div. 438

Court of Appeals of Alabama

May 18, 1916

Rehearing Denied May 30, 1916

Appeal from Circuit Court, Covington County; H.A. Pearce, Judge.

Cleve Everage was convicted of forgery, and he appeals. Affirmed.

The indictment charges that Cleve Everage, with intent to injure or defraud, did falsely make, offer, or forge an instrument in writing in words and figures as follows: Here follows the regular injunction bond, executed by Everage to W.A. Campbell and others, to enjoin the enforcement and collection of three executions against the said Everage, then in the hands of the sheriff, issued by the Court of Appeals in favor of W.A Campbell, and against the said Everage. The bond is signed C.C. Everage, J.W. Everage, and J.H. Fletcher. The bond was approved July 22, 1913, by J.L. Murphy, special register. The allegation is that he forged the name of J.H. Fletcher to the bond. J.L. Murphy testified that he was special register in the case of C.C. Everage against W.A. Campbell, and that the bond was presented to him by Everage, just as it appears then, and at the time of the trial, and that he approved it as special registrar. The witness Campbell being introduced it was asked if he was familiar with the handwriting of Everage, and he answered, "Partially." He was later asked if he knew the handwriting of said Everage, and replied, "Well, I think I do." He was further asked, "Well, in your judgment, do you know it?" and answered, "Yes, sir." The witness was then permitted to state that, in his judgment, the signatures to the bond were in the handwriting of C.C. Everage. The same thing is true of the testimony of Rory Campbell, and also the testimony of Jim Head.

Parks &amp Prestwood, of Andalusia, for appellant.

W.L. Martin, Atty. Gen., and P.W. Turner, Asst. Atty. Gen., for the State.

PELHAM P.J.

Defendant was indicted for having forged an injunction bond approved by a special register.

The defendant requested the general charge upon the grounds that the crime had not been proven; that there was a variance, in that the indictment charged a forgery of the entire instrument while the evidence showed, if anything, nothing beyond the forgery of a signature to the bond; that the bond was not of legal efficacy.

The venue was sufficiently shown. "It is not necessary to prove in express terms that the offense was committed in the county where the indictment was found. Evidence from which the jury could so infer is sufficient." Tinney v. State, 111 Ala. 74, 20 So. 597; Dupree v. State, 148 Ala. 624, 42 So. 1004. The court judicially knows where the bond was filed; the defendant lived in the county at the time of the execution of the bond; the defendant's father was there at the time. All the transactions in connection with the bond were shown to have been had in Covington county. See Powell v. State, 5 Ala.App. 75, 59 So. 530.

There is no material variance between the allegata and probata. The word "forge" includes the false making of an instrument in whole or in part. It is not necessary to set out in what particular act the forgery consists, because the word "forge" includes, in and of itself, a statement of the particular acts which constitute this particular offense. State v. Greenwood, 76 Minn. 211, 78 N.W. 1042, 1117, 77 Am.St.Rep. 632, 635.

Appellant inquires:

"Now could the defendant be put in jeopardy again under this instrument on an allegation that he forged the other two signatures, or either of them, to said bond?" We answer he cannot, as the Supreme Court has said:

"A single crime cannot be split up, or subdivided into two or more indictable offenses. *** If the state elects *** to prosecute a crime in one of its phases, or aspects, it cannot afterwards prosecute the same criminal act under color of another name. *** 'The state cannot split up one crime and prosecute it in parts."' Moore v. State, 71 Ala. 307; Brown v. State, 105 Ala. 117, 16 So. 929; Willis v. State, 134 Ala. 450, 33 So. 226.

The next question for consideration is: Was the instrument the subject of forgery?

"In the opinion rendered in Dixon v. State, 81 Ala. 61, 1 So. 69, the court quoted with approval the following statement of Mr. Bishop: '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.' Any false instrument which is legally capable of effecting a fraud may be the subject of a charge of forgery. Murphy v. State, 118 Ala. 137, 23 So. 719; Burden v. State, 120 Ala. 388, 25 So. 190, 74 Am.St.Rep. 37." Dudley v. State, 10 Ala.App. 130, 135, 64 So. 534, 535.

In Rembert v. State, 53 Ala. 469, 25 Am.Rep. 639, the Supreme Court said:

"Certain writings--a promissory note, or bill of exchange, for illustration--import on their face the creation of a pecuniary liability. So of many other

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