Gooch v. State
| Decision Date | 02 September 1947 |
| Docket Number | 8 Div. 556. |
| Parties | COOCH v. STATE. |
| Court | Alabama Court of Appeals |
Bradshaw & Barnett, of Florence, for appellant.
A A. Carmichael, Atty. Gen., and John O. Harris, Asst. Atty Gen., for the State.
The conviction in the court below was based on the following indictment:
'The Grand Jury of said County charge that before the finding of this Indictment, Ralph Gooch, whose name is to the Grand Jury otherwise unknown, than as stated, with intent to injure or defraud, did alter, forge, or counterfeit a certain check which was in substance as follows:
or with intent to injure or defraud did utter and publish as true the said falsely altered, forged, or counterfeited check, knowing the same to be so altered, forged or counterfeited, against the peace and dignity of the State of Alabama.'
As indicated, the check which is the basis of the forgery cherge bears date of a Sunday.
Under the provisions of Title 13, Section 88, Code 1940, we certified to the Supreme Court these questions:
'1. Does a check dated on Sunday possess sufficient legal efficacy to defraud so as to be the subject of forgery where no extrinsic facts are alleged in the indictment?
In response to the certification the Supreme Court stated:
'A precise, categorical answer is not possible to either of these general inquiries, as will appear from the considerations hereafter noted. The legal principles adverted to, however, should be sufficient for the purposes of your decision.
'The pertinent statute is: 'All contracts made on Sunday, unless for the advancement of religion, or in the execution, or for the performance of some work of charity, or in case of necessity, or contracts for carrying passengers or perishable freight or transmissions of telegrams or for the performance of any duty authorized or required by law to be done on Sunday are void.' § 21, Title 9, Code 1940.
'The offense of forgery is committed if the accused intended to defraud by forging or uttering, as genuine, a spurious instrument which has the capacity to defraud. Jones v. State, 50 Ala. 161; Denson v. State, 122 Ala. 100, 26 So. 119; Hall v. State, 31 Ala.App. 455, 18 So.2d 572, certiorari denied 245 Ala. 671, 18 So.2d 574.
'But a writing void on its face, illegal in its very frame, is not the subject of forgery in consequence of its incapacity to effect a fraud. Rembert v. State, 53 Ala. 467, 25 Am.Rep. 639; Hobbs v. State, 75 Ala. 1; Hall v. State, supra; Burdick, Law of Crimes 547, § 622a.
'A check is a contract (Deal v. Atlantic Coast Line R. Co., 225 Ala. 533, 144 So. 81, 86 A.L.R. 455)--a bill of exchange drawn on a bank payable on demand--and is therefore within the purview of the Sunday statute and likewise may be the subject of forgery. Howard v. State, 17 Ala.App. 628, 88 So. 215.
'And, 'The false making of a bill of exchange, void by statute, will not constitute the offense (of forgery).' Rembert v. State, supra, 53 Ala. at page 469, 25 Am.Rep. 639.
'So, a check given on Sunday, unless for one of the purposes permitted by law as set forth in the Sunday statute, would be void and not the subject of forgery.
Dixon v. State, 81 Ala. 61, 65, 1 So. 69, 71.
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Liberty Nat. Life Ins. Co. v. Weldon
...permitted by law as set forth in the Sunday statute [§ 21, Title 9, Code 1940], would be void and not the subject of forgery.' 249 Ala. 479, 31 So.2d 779. We do not think the holding in the Gooch Case is in any way controlling here. We cannot lift out of context the criminal law rationale o......
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Williams v. State, 8 Div. 697
... ... On appeal, the appellant is represented by different counsel than in the trial court. Appellant contends that a check dated on Sunday is void on its face and thus will not support an indictment ... The identical question was before this Court in Gooch v. State, 33 Ala.App. 221, 31 So.2d 779 (1947). This Court was unable to decide the issue and certified the question to the Supreme Court of Alabama. The effect of the Supreme Court decision was that a check given on Sunday is void and cannot be made the subject of forgery. Gooch v. State, 249 ... ...
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Williams v. State, 8 Div. 440
... ... The indictment does not allege or set out any circumstances extrinsic to the check itself showing it is not void ... We had this identical question before us for review in the case of Gooch" v. State, 33 Ala.App. 221, 31 So.2d 779. We certified the following questions to the Supreme Court: ... '1. Does a check dated on Sunday possess sufficient legal efficacy to defraud so as to be the subject of forgery where no extrinsic facts are alleged in the indictment? ... \xC2" ... ...