Howard v. State

• Decision Date: 14 December 1920
• Docket Number: 6 Div. 701
• Citation: 17 Ala.App. 628,88 So. 215
• Parties: HOWARD v. STATE.
• Court: Alabama Court of Appeals

88 So. 215

17 Ala.App. 628

HOWARD v. STATE.

6 Div. 701

Court of Appeals of Alabama

December 14, 1920

Appeal from Circuit Court, Jefferson County; William E. Fort, Judge.

Ned Howard was convicted of forgery in the second degree, and he appealed. Affirmed.

Grace &amp Simpson, of Birmingham, for appellant.

J.Q Smith, Atty. Gen., and Lamar Field, Asst. Atty. Gen., for the State.

BRICKEN P.J.

This appeal is on the record proper, there being no bill of exceptions. The defendant was indicted, tried and convicted for the offense of forgery in the second degree, and was given an indeterminate sentence in the penitentiary of not less than two years nor more than five years.

It is first insisted that the indictment is not sufficient upon which to predicate the judgment of conviction, in that it fails to aver or charge who the defendant intended to injure or defraud. Pretermitting the fact that no objection by demurrer or otherwise was interposed to the indictment in the court below, it is sufficient to say here that there would have been some merit in this contention under the common law for at common law it was necessary particularly to name the person intended to be defrauded; and, without this allegation, the indictment would have been fatally defective. However, this rule has been changed by statute, so that now, when, to sustain an indictment, "an intent to injure or defraud is necessary," a general averment of the intent, without naming the particular person, corporation, or government intended to be defrauded, is sufficient. Code 1907, § 7146; Jones v. State, 50 Ala. 161; Horton v. State, 53 Ala. 488-493; Lee v. State, 118 Ala. 672, 23 So. 669; Headley v. State, 106 Ala. 109, 17 So. 714; Denson v. State, 122 Ala. 100, 26 So. 119.

There is no merit in the contention that the indictment charges forgery in the first degree. It clearly charges forgery in the second degree, and was framed under section 6910 of the Code 1907. The term "bill of exchange" includes a check. In the case of First National Bank v. Nelson, 105 Ala. 180, 193, 16 So. 707, 708, the Supreme Court used the following language:

"It is noticeable that the words 'bill' and 'bill of exchange' are used interchangeably in the several sections as meaning one and the same thing; and that the words 'bill of exchange' include a check. *** So far as our investigations have gone we have not seen a case construing a statute in which the words 'bill,' or 'bill of exchange,' occur, where the question arose, in which they were not held to embrace a check."

The next contention is that:

"The alleged verdict in this case is not a proper verdict, because it is not signed by any member of the jury who tried the appellant as foreman."

In the first place this insistence is not borne out by the record, the judgment entry as far as relates to this question being:

"*** Thereupon came a jury of good and lawful men, to wit, C.A. Buff and eleven others, who, being impanelled and sworn according to law, upon their oaths do say: 'We, the jury, find the defendant guilty, as charged in the indictment."'

This recital in the minute entry is sufficient in every particular. Anderson v. State, 65 Ala. 553. Appellant's counsel cite no authority, but insist that in order to add...