Koch v. State

• Decision Date: 17 June 1897
• Citation: 115 Ala. 99,22 So. 471
• Parties: KOCH v. STATE. [1]
• Court: Alabama Supreme Court

22 So. 471

115 Ala. 99

KOCH v. STATE. ^[1]

Supreme Court of Alabama

June 17, 1897

Appeal from circuit court, Marshall county; J. A. Bilbro, Judge.

Bud Koch was convicted of forgery, and he appeals. Affirmed.

The instrument which the appellant was charged with having forged was in words and figures as follows: "Nov. 17, 96. Mr A. G. Henry Dear Sir I never Did ask you for a favor and you failed to help me. Mr. Henry I wannt you to sind $5.00 Dollars until Saturday I can Get me a Good cow for five Dollars and I want you to sind it if you please and oblige [Signed] X his mark J. F. Burson."

J. F Burson, whose name was signed to the forged instrument testified that he had not given the defendant any authority to sign his name to any paper, and that he did not sign the paper alleged to have been forged, and did not authorize any one else to sign his name thereto.

One Will Nearen, a witness for the state, testified that he, the witness, was the mail rider, and that as he was going along the road to Guntersville, one Tom Green handed him the paper and asked him to give it to Mr. Henry; that without unfolding the paper or looking at it, he carried it to Guntersville and delivered it to one of Mr. Henry's clerks.

Tom Green, as a witness for the state, testified that the defendant gave him the paper which he handed to the witness Will Nearen, and that in accordance with the defendant's instructions, he, Green, without examining or noticing the paper, delivered it to Nearen, and asked him to give it to Mr. Henry.

It was shown that at the preliminary trial of the defendant, a memorandum book was taken from his pocket; and there was evidence for the state tending to show that the paper upon which the forged instrument was written was a page torn from such book. There was other evidence for the state tending to show that the defendant was guilty as charged.

The testimony for the defendant tended to show that he did not forge the instrument introduced in evidence; and the defendant himself testified that he never wrote the instrument, and had never seen it until it was shown to him upon the trial. The other facts of the case showing the rulings of the court upon the evidence, to which exceptions were reserved, are sufficiently stated in the opinion.

The court, in its general charge to the jury, instructed them among other things, as follows: "I will charge you that the 17th day of November, 1896, was Tuesday." To this charge of the court the defendant duly excepted, and also separately excepted to the court's refusal to give, among others, the following written charges requested by him: (2) "The court charges the jury that the fact that an entry of a day of a month and year is entered on any one or more places in or on the book offered in evidence is not evidence that it was entered there on that day." (3) "The court charges the jury that they will not read any part of the book in evidence except the dates, that the dates are not evidence of their own correctness, nor are they evidence of anything else." (5) "The court charges the jury if from a consideration of all the evidence there is any reasonable uncertainty as to the truth of the testimony of the witness Tom Green, the jury should find the defendant not guilty." (6) "There being no evidence before the jury that any one wrote the order at the instance of the defendant, it devolves upon the state to show to the satisfaction of the jury beyond all reasonable doubt that he wrote the order." (9) "The court charges the jury that after a careful survey of all the evidence, the jury should be morally certain of defendant's guilt to the exclusion of all reasonable doubt that the defendant and no other but him wrote the paper in evidence." (10) "The court charges the jury that circumstances may all point to the guilt of the defendant, yet the law holds him not guilty until you have had evidence strong enough to convince you to a moral certainty that defendant wrote the order." (11) "The court charges the jury that if other persons had an equal opportunity to write and send the paper in evidence, the jury may look to this in connection with all the other evidence, and if a reasonable doubt exists as to who wrote the paper, the defendant is not proven guilty as the law requires, and should be found not guilty." (13) "The court charges the jury that if Tom Green had an interest in convicting the defendant, then this may be a just foundation for a reasonable doubt, and the acquittal of defendant." (14) "The court charges the jury that if the evidence discloses the fact that the order went through the hands of several of the witnesses, the jury may look to this in weighing the evidence of these witnesses, and if a reasonable doubt arises in your minds from any part of the evidence as to who wrote the order, defendant should be acquitted." (15) "The court charges the jury that the burden is on the state to show to the jury by evidence so convincing as to leave no other reasonable conclusion in their minds that defendant is the person who wrote the alleged order, or uttered it, and if from all the evidence the jury are not so convinced but are still in doubt as to whether defendant or some other person wrote it, the defendant should be acquitted." (16) "If the jury are not morally certain that defendant wrote the order he should be acquitted." (18) "If the jury find from all the evidence that Tom Green handed a paper to Nearen, and Nearen handed it to one of Mr. Henry's clerks, and neither Tom Green nor Nearen looked at it, and if this is the paper before the jury, then the jury have a right to, and should consider the fact, if it be a fact, in weighing the evidence of Tom Green."

Lusk & Bell, for appellant.

William C. Fitts, Atty. Gen., for the State.

HARALSON J.

1. There is no merit in the first, second, third, and fourth assignments of error, referring to the refusal of the court to allow the witness Burson, on cross-examination by defendant, to answer the questions, how far Tom Green and his mother lived from him, Burson, last fall, and who lived with them etc. Green was afterwards examined as a witness by the state, but what the fact of how far he or his mother lived from Burson's in the fall, and who lived with them, and whether any other persons of the family were at home at that time or not, had to do with the case, remains to be disclosed.

2. The alleged forged order by defendant on A. G. Henry, in the name of the witness, Burson, had been delivered by Henry to Burson, who testified, further, that on the...