Lessley v. State

• Decision Date: 13 June 1922
• Docket Number: 6 Div. 990.
• Citation: Lessley v. State, 18 Ala.App. 657, 94 So. 262 (Ala. App. 1922)
• Parties: LESSLEY v. STATE.
• Court: Alabama Court of Appeals

94 So. 262

18 Ala.App. 657

LESSLEY v. STATE.

6 Div. 990.

Court of Appeals of Alabama

June 13, 1922

Rehearing Denied Oct. 24, 1922.

Appeal from Circuit Court, Tuscaloosa County; Henry B. Foster Judge.

W. B Lessley was convicted of forgery, and he appeals. Affirmed.

Bricken P.J., dissenting in part.

Edward de Graffenried, Jr., of Tuscaloosa, for appellant.

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

SAMFORD J. (for the majority).

The defendant was charged with forging the following instrument:

"Tuscaloosa, Ala., July 12th, 1920.

"The First National Bank 61-70 of Tuscaloosa, Ala.

"Pay to the order of W. B. Lessley $2,901.60, twenty-nine hundred & Won & 60/100 Dollars.

X X

"Wit

Bob & Lila Casper.

"W. B. Lessly."

The sole question presented for review upon the merits of the prosecution is whether the check above set out, being signed by mark and attested by the payee, who received the money, is the subject of forgery. This question was raised in the trial court by demurrer, objection to testimony, and by refused charges, and is fairly presented to this court.

To authorize an indictment for forgery the instrument must either appear on its face to be, or be in fact one which, if true, would possess some legal validity, or be legally capable of effecting a fraud (Dixon v. State, 81 Ala. 61, 1 So. 69), or, as expressed in the common-law definition of forgery, "might apparently be of legal efficacy or foundation of a legal liability." Bishop, 1 Crim. Law (7th Ed.) § 522.

The insistence is here made that, as the check is signed by mark and attested by defendant, who was the payee named in the check, on its face the signature was void and of no effect, and therefore not calculated to deceive. For the purposes of the law merchant a check is defined to be (Code 1907, §§ 5132, 5075) "an unconditional order in writing addressed by one person to another, signed by the person giving it," etc., and when the check is to circulate as a bill of exchange in the marts of trade, to be valid, if signed by mark by a person unable to write, it must be witnessed as required by statute (Flowers v. Bitting, 45 Ala. 448). This is not a requirement of the statute, to the effect that a party having money in a bank may not withdraw it or order it to be paid to another except in writing signed by the party, as between the bank and its depositor. And where it is not so required by statute, such payment may be effected by an instrument signed by mark, although not witnessed. Bickley v. Keenan, 60 Ala. 293; Bates v. Harte, 124 Ala. 427, 26 So. 898, 82 Am. St. Rep. 186; Jackson v. Tribble, 156 Ala. 480, 47 So. 310. If the party could write his name he could sign by mark, if he so desired and so adopted it. Smith v. Vaughn, 206 Ala. 9, 89 So. 303; Jackson v. Tribble, 156 Ala. 480, 47 So. 310. If, therefore, the check had been genuine, and the drawers had actually made their marks to the check or order, such check or order would have imported a liability upon which suit could have been maintained and judgment rendered, unless the drawers by proper defense had shown that at the time the order was so signed they could not read or write; the burden resting upon them to make this proof. Or, if suit had been brought by the drawers against the bank for and on account of the deposit, such check or order, proven to be genuine, would be admissible in evidence to show that the money had been paid out under the direction of the drawers, and the drawers would not be permitted to recover over their admitted order to pay. Flowers v. Bitting, 45 Ala. 448.

If then the order or check is not such instrument, as between the bank and its depositor is required by statute to be signed in order to bind the depositor and protect the bank in the payment of the depositor's money, the check or order is the subject of forgery. Bickley v. Keenan & Co., 60 Ala. 293; Barnett v. State, 89 Ala. 165-171, 7 So. 414; Jackson v. Tribble, 156 Ala. 480, 47 So. 310. If it is such an instrument as is required by the statute to be signed, upon its face it appeared to be a signature at common law, importing a liability, in the absence of evidence there present, that the drawer could not write his name. If it was a void signature, it would still be admissible as evidence in a proper suit, as an adminicle of documentary proof, in either of which events it is the subject of forgery; all that is required being that the party on whom the forgery is perpetrated should be exposed to apparent risks. 11 Wharton's Crim. Law, § 900, note 7.

The court did not err in its several rulings bearing on the foregoing questions.

We note, however, an error in the judgment, in that defendant was allowed bail in the sum of $5,000 pending appeal. The sentence of the law being that he be imprisoned in the penitentiary for more than five years, bail should not be allowed, and the sheriff of Tuscaloosa county is hereby ordered to at once take the defendant into his custody, and to so detain him until he may be delivered to the proper officials.

There is no reversible error in the record, and the judgment is affirmed.

Affirmed.

BRICKEN, P.J., dissents.

MERRITT, J.

I concur in the conclusion reached by SAMFORD, J., but wish to place my concurrence in such conclusion on the ground that the check set out in the indictment is of apparent legal efficacy. An instrument cannot be said to be incapable of effecting fraud because by extraneous evidence it can be shown to be of no validity. Such instruments are nevertheless the subject of forgery.

So far as the check shows on its face, it was signed by the drawers, Bob and Lila Casper, by each writing their names, and the fact that there was an X mark over the name of "Bob" and "Lila Casper," without more, does not indicate that it was signed by mark, and to so establish this fact required evidence aliunde. If it be conceded that the X mark, without more, shows that Bob and Lila Casper signed the instrument by making their mark, then the check shows on its face that such signing was attested by a witness who could write his name. But it is contended that such attesting witness was as a matter of fact the payee named in the check, and as such could not be an attesting witness. Conceding then further that as a matter of law the payee could not be an attesting witness to the signature to the instrument drawn in his favor, yet it does not appear from the face of the check that the attesting witness is one and the same person, and extraneous evidence would be necessary to establish this fact. In fact the payee is "W. B. Lessley," while the attesting witness is "W. B. Lessly." But it may be contended that this reasoning is good, so far as the demurrers are concerned, but that the evidence shows that the drawers did sign by mark, and that the attesting witness is the same person named as payee in the check, and that on this account the check was improperly admitted in evidence.

A sufficient answer to this is that, while the evidence on the trial may show these to be the facts, yet all of these things did not appear on the face of the instrument, and that at the time of the alleged forgery this check as executed was calculated to deceive and perpetrate a fraud, and if all the evidence showed an instrument calculated to consummate a fraud, even though the instrument whereby the attempt was made should be shown by extraneous facts to be of no legal import, still the instrument under these facts is the subject of forgery. This would be true if the name signed was fictitious, or that a person to whom an order is addressed had no money or goods of the purported drawer in his possession. 19 Cyc. 1382; People v. McGlade, 139 Cal. 66, 72 P. 600; People v. Baker, 100 Cal. 188, 34 P. 649, 38 Am. St. Rep. 276; State v. Pierce, 8 Iowa, 231; State v. Hilton, 35 Kan. 338, 11 P. 164; State v. Morton, 27 Vt. 310, 65 Am. Dec. 201; Bowles v. State, 37 Ohio St. 35; Lemasters v. State, 95 Ind. 367; Thompson v. State, 49 Ala. 16; Williams v. State, 126 Ala. 50, 28 So. 632.

I am conceding, without deciding, that where a check is signed by mark, it is necessary that there should be an attesting witness who can write his name.

BRICKEN. P.J.

It having officially been made known to this court that this appellant has escaped from legal custody, and is now a fugitive from justice, the application for rehearing and the appeal is dismissed.

BRICKEN P.J. (dissenting).

The appellant was convicted in the court below of the criminal offense of forgery in the second degree, and from the judgment of conviction pronounced against him he prosecutes his appeal to this court.

The indictment preferred against the defendant in the trial court charged him with the forgery of a certain alleged check, which is set out in the indictment, and which appears to be set out in hæc verba in the record before us on appeal.

The defendant demurred to the indictment, and by said demurrer challenged the apparent validity of the instrument set out in the indictment as a check: First, because said alleged check did not purport to be signed by the makers thereof; second, because the signatures to said alleged check purported to be by mark, and the same did not purport to be witnessed; and, third, because the drawers of said alleged check could not write their names, and their signatures purported to be by mark, and said alleged check showed on its face that the only attesting witness to the signatures by mark of the alleged drawers of said check was the payee of said check. The trial court overruled said demurrers, and the defendant excepted.

The same legal questions were raised by the defendant upon his trial through appropriate objections to the introduction...