Leath v. State
| Citation | 31 So. 108,132 Ala. 26 |
| Parties | LEATH v. STATE. |
| Decision Date | 19 December 1901 |
| Court | Alabama Supreme Court |
Appeal from circuit court, Dekalb county; J. A. Bilbro, Judge.
Joseph C. Leath was convicted of forgery, and he appeals. Reversed.
Burnett Hood & Murphree, for appellant.
Charles G. Brown, Atty. Gen., for the State.
The indictment alleges that, when the warrants were presented to the Ft. Payne Bank and paid by it, they severally had the names of the respective payees indorsed on the back thereof. The name of the payee in one of the warrants is On the warrant offered and received in evidence the name indorsed is not but The names are neither the same, nor of the same sound. There was a variance, therefore between the allegation of the indictment and said evidence. The court erred in receiving this warrant and the indorsement upon it in support of the averment. There appears now on this warrant also the following: Slone, as appears by the averments of the indictment and the evidence, was the cashier of the Ft. Payne Bank, and as such cashed all the warrants on the assurance--alleged to be false--of the person presenting them that the payees had indorsed them. So that it is clear that the indorsement was not on the warrant when presented and paid, and is not the indorsement averred in the indictment.
It is alleged in the indictment that one of the warrants presented to the bank was payable to "Sallie Battles" or order. One of those received in evidence is payable to "Sallie Battels." The difference in the spelling here is immaterial, as the names as thus differently spelled are idem sonans. But the indictment further avers that, when this warrant was presented to and paid by the bank, it had the name of the payee indorsed thereon. On this warrant, as offered in evidence, and received against defendant's objection, were the following indorsements, "Sallie Boppes," and "Sallie Bappels, by M. Haas." Whether the one or the other or both of these indorsements be relied on to support the averment of the indictment, the result is the same. Neither the one nor the other is the name of the payee, nor has either the same sound as the name of the payee. In respect to this warrant, also, therefore, there was such variance between the allegations of the indictment and the proof as that the court should have excluded the warrant and its indorsements from the jury.
The defendant was arrested a week or 10 days after the alleged offense, by the commission of which he is alleged to have gotten...
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