Harris v. State

• Decision Date: 04 December 1923
• Docket Number: 1 Div. 542.
• Parties: HARRIS v. STATE.
• Court: Alabama Court of Appeals

98 So. 316

19 Ala.App. 484

HARRIS v. STATE.

1 Div. 542.

Court of Appeals of Alabama

December 4, 1923

Appeal from Circuit Court, Mobile County; Saffold Berney, Judge.

Mart Harris was convicted of forgery, and appeals. Reversed and remanded.

Geo. B. Cleveland, Jr., of Mobile, for appellant.

Harwell G. Davis, Atty. Gen., and Lamar Field, Asst. Atty. Gen., for the State.

SAMFORD J.

The indictment was as follows:

"The grand jury of said county charge that before the finding of this indictment Mart Harris, alias Morris F Mosse, alias George T. Harn, alias George Hart, with intent to injure or defraud, did alter, forge, or counterfeit a certain check which was in substance as follows:

"Mobile, Ala., March 21, 1923. No. 340.

"The First National Bank. 61-26.

"Pay to the order of Gayfers Dept. Store $9.96, nine 96/100 dollars.

"Morris F. Mosse.

"1503 Springhill Ave.

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." To this indictment the defendant interposed a plea of guilty.

The plea of guilty when accepted and entered by the court is a conviction of the highest order, authorizing the imposition of sentence fixed by law the same as on the verdict of a jury, after trial on a charge sufficiently charged in the indictment. The plea, however, is only an admission of record of the truth of whatever is sufficiently charged in the indictment, and does not prevent the defendant from taking advantage of error of defects apparent of record. The statute, Code 1907, § 2892, which provides that a confession of judgment is in law a release of errors, does not apply in a criminal case. Burke v. State, 74 Ala. 399; State v. Kelley, 206 Mo. 685, 105 S.W. 606, 12 Ann Cas. 681; Grossman v. Oakland, 30 Or. 478, 41 P. 5 36 L. R. A. 593, 60 Am. St. Rep. 832. We may, therefore, on the record before us, pass to a consideration of the question as to whether or not the indictment as drawn will support a conviction and sentence for forgery, even conceding that the defendant admitted by his plea the commission of the act charged.

The defendant is indicted under the names Mart Harris, Morris F. Mosse, George T. Harn, George Hart. True, the word alias is used to connect these names. The word "alias" is an abbreviation of the words "alias dictus," meaning "otherwise called." So that, according to the allegations of the state in the indictment, by all of these names he is known or called, and by either of them he could be identified. 1 Words and Phrases, 297.

It further appears from the indictment, by a copy of the check alleged to have been forged, he signed one of the names by which he was known and called. That is to say, he signed the check with his own name. It was said in Commonwealth v. Costello, 120 Mass. 370:

"The essential element of forgery consists in the intent, when making the signature or procuring it to be made, to pass it off fraudulently as the signature of another party than the one who actually makes it."

The real test seems to be: Did the party signing the check intend to commit a fraud by deception as to the identity of the person who uses the name? Rex v. Bantein, Rus. & R. 260; Rex v. Peacock, Id. 278; State v. Wheeler, 20 Or. 192, 25 P. 394, 10 L. R. A. 779, 23 Am. St. Rep. 119.

The law is well settled that the signing of a fictitious name to an instrument with fraudulent intent constitutes forgery. 8 Am. & Eng. Enc. of Law 457; Williams v. State, 126 Ala. 50, 28 So. 632. And, if such had been the charge here it would then have become a question of fact as to fraud in identity of...