Gooch v. State
Citation | 31 So.2d 776,249 Ala. 477 |
Decision Date | 31 July 1947 |
Docket Number | 8 Div. 556. |
Parties | GOOCH v. STATE. |
Court | Supreme Court of Alabama |
Answer to certified question conformed to in Ala.App., 31 so.2d 779.
Certification to Supreme Court To the Supreme Court of Alabama:
The judges of this court are in disagreement and 'unable to reach an unanimous conclusion' as to the controlling question in the case of Ralph Gooch v. State, from Lauderdale Circuit Court, now pending in this court.
Our Court in Aders v. State, 21 Ala.App. 41, 104 So. 882, held that an instrument, which under Code of 1923, Section 6821 Title 9, Sec. 21, Code of Alabama 1940, was void on its face because executed on Sunday, is not subject to an indictment for forgery unless under certain circumstances extrinsic to the paper itself, such as an allegation that, while it bore date as of a Sunday, yet as a matter of fact, it was forged or uttered on a week day.
The Supreme Court in Crow v. State, 236 Ala. 26, 183 So 907, 908, cited several cases bearing upon the question as to what instruments are subject to forgery, but did not cite the Aders case, though other cases of the Court of Appeals were cited. In the Crow case, supra, the Supreme Court said:
'The cases hold that unless the instrument is one, the forgery of which is a crime at common law, or shows on its face that if genuine is of apparent legal efficacy and has the capacity to defraud, or is described by sections 4120 or 4121 [Code 1940, Tit. 14, §§ 199, 200], or other statute the indictment must allege extrinsic facts which show its legal efficacy or capability to defraud.'
Our Court in the case of Hall v. State, 31 Ala.App. 455 18 So.2d 572, 273, held that:
'It is only necessary that the forged instrument possess some apparent legal efficacy; that there is a reasonable possibility that it may operate to cause injury; and such an instrument may constitute a forgery, although if it were genuine other steps would have to be taken before it would be perfected.'
The Supreme Court in the case of Jones v. State, 50 Ala. 161, in treating an instrument in words and figures as follows: with reference to the law of forgery held as follows:
In an attempt to reconcile these authorities, being persuaded that the Aders case is unsound, that Sunday laws were enacted to suppress unnecessary business transactions on other than secular days and not for the purpose to encourage crime on Sunday, that said statute declaring contracts made on Sunday to be void was designed to discourage business transactions on Sunday by limiting civil rights arising thereunder and has no relation to or effect upon the rights of the State to enforce its criminal laws or protect itself against their violation, the judges of our court have disagreed. Therefore, as authorized by law, the following abstract questions are hereby certified to your court for an opinion as guidance to our court in said cause, to-wit:
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?
2. Does Title 9, Section 21, Code of Alabama 1940, prevent the prosecution in the name of the State for the forgery of an instrument dated on Sunday?
The foregoing are propounded under the provisions of Title 13, Section 88, Code of Alabama 1940. As aid in determining this inquiry the transcript in the case above captioned is herewith submitted.
R. B. Carr
Response to Questions Certified by the Court of Appeals:
The Court of Appeals under the provisions of § 88, Title 13, Code 1940, has certified for our answer the following two 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?
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...
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