Gardner v. State

• Decision Date: 23 June 1892
• Citation: 11 So. 402,96 Ala. 12
• Parties: GARDNER v. STATE.
• Court: Alabama Supreme Court

11 So. 402

96 Ala. 12

GARDNER v. STATE.

Supreme Court of Alabama

June 23, 1892

Appeal from circuit court, Pike county; JOHN P. HUBBARD, Judge.

Zach Gardner was convicted of forgery, and appeals. Affirmed.

R L. Williams, for appellant.

Wm. L. Martin, Atty. Gen., for the State.

COLEMAN J.

The defendant was convicted of the offense of forgery, and sentenced to the penitentiary. The first exception reserved is as to the admission in evidence of the instrument charged to have been forged, upon the ground that there is a variance between the instrument and that described in the indictment. The bill of exceptions does not pretend to set out the instrument itself, either in verba or substantially.

A paper writing attached to the record, when there is no reference to it in the bill of exceptions by which it may be identified as the instrument introduced in evidence, and no order of the judge, as provided in rule 23, p. 803, Code, directing that the original paper be sent up for the inspection of this court, cannot be considered on appeal. See rule 23, supra; Pruitt v. McWhorter, 74 Ala. 315; Wright v Dunklin, 83 Ala. 317, 3 South. Rep. 597. But, if we could consider it, the instrument sent up is clearly the subject of forgery, within the express provision of the statute, (Code, § 3852,) and there is no material variance if there is any whatever, between it and that described in the indictment. Baysinger v. State, 77 Ala. 63; Allen v. State, 74 Ala. 559. It was competent for the state to prove that when the defendant presented the order he said, "Here is an order from Mr. King." Such a statement tended to show that the name attached to the order, so far as it affected the defendant, was properly stated in the indictment. Baysinger v. State, supra, p. 65. It was competent for the witness Ross to testify that he "regarded the defendant as being perfectly sane." The bill of exceptions states that "before giving this opinion the witness stated the means of his information and the special facts and circumstances." The "means and facts and circumstances" are not set out, and we cannot presume that they were not sufficient to authorize the introduction of the evidence. The rule uniformly held in this state was fully complied with before the introduction of the testimony. Ford v. State, 71 Ala. 397; In re Carmichael, 36 Ala. 514; Norris v. State, 16 Ala. 778; Parsons v. State, 81 Ala. 597, 2 South. Rep. 854. The only plea of the defendant was that of "not guilty." Maxwell v. State, 89 Ala. 151, 7 South. Rep. 824. An exception was taken to the following portion of the charge given by the court to the jury: "What was the defendant's intent in this matter? That is, if you find that the defendant did utter this instrument, you must decide from all the evidence."

It has been settled law in this state too long to be now questioned that an indictment for forgery under our statute will be sustained, and a conviction may be properly had, upon proof that the defendant, with fraudulent intent and guilty knowledge, uttered the forged instrument. Bishop v State, 30 Ala. 39; Harrison v. State, 36 Ala. 251; McGuire v. State, 37 Ala. 162; Hobbs v. State, 75 Ala. 6. A disconnected sentence or part of a charge, although it does not describe all the constituents of the...