McGee v. State

• Decision Date: 19 August 1924
• Docket Number: 8 Div. 127.
• Citation: 20 Ala.App. 221,101 So. 321
• Parties: MCGEE v. STATE.
• Court: Alabama Court of Appeals

101 So. 321

20 Ala.App. 221

MCGEE v. STATE.

8 Div. 127.

Court of Appeals of Alabama

August 19, 1924

Appeal from Circuit Court, Lauderdale County; Charles P. Almon Judge.

J. W McGee was convicted of forgery in the second degree, and he appeals. Affirmed; remanded for sentence.

Simpson & Simpson, of Florence, for appellant.

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

FOSTER J.

The defendant was indicted and convicted for forgery in the second degree. The first count of the indictment charged him with having, with intent to injure or defraud, altered forged, or counterfeited a certain check. The second count of the indictment charged him with having with intent to injure or defraud, uttered and published as true the alleged forged, altered, or counterfeited check. The evidence for the state was directed to showing the following:

The defendant was attempting to negotiate a real estate transaction with one Mr. Ambrose and one Mr. Stewart. The price agreed to be paid by defendant for the land was $8,200. He presented a check to the parties named, dated Florence, Ala., February 1, 1923, drawn upon the First National Bank of Florence, Ala., for the sum of $12,500, with the name of F. M. Perry signed thereto as maker, and payable to W. L. Smith, or bearer, and the name of W. L. Smith was indorsed on the back thereof. Defendant took the check to Sheffield, Ala., and there told Mr. Stewart that the check was good and agreed for Mr. Stewart to carry it to the First National Bank of Florence to have it certified, and for Stewart to bring back to defendant a certified check for the difference between the amount of the Perry check and the price of the real estate purchased by defendant. The check was carried by Mr. Stewart to the bank in Florence, but it was not honored, because the signature was not genuine.

Mr. F. M. Perry, witness for the state, testified that he did not sign the check, nor authorize any one to sign it, and that he had no transaction with W. L. Smith about the time the check was dated.

The record shows a plea of not guilty, but fails to show a plea of not guilty by reason of insanity. Evidence introduced on behalf of defendant tended to show that he was insane at the time the alleged offense was committed. The state, in rebuttal, introduced evidence tending to show defendant's sanity.

The defendant did not testify in his own behalf, and there was no conflict in the evidence as to the forgery of the check. The general charge in favor of defendant was requested and refused.

The fact of defendant's unexplained possession of the false instrument was strong evidence that he forged it, or caused it to be forged. This fact, taken in connection with the other evidence, was sufficient to make the defendant's guilt or innocence a question for the jury.

An intent to injure or defraud need not be proven by positive and direct evidence. It may be inferred by the jury from the evidence before them. Gooden v. State, 55 Ala. 178; McDonald v. State, 83 Ala. 46, 3 So. 305.

The general charge in favor of defendant was given by the court as to count 2 of the indictment, leaving only the first count for the consideration of the jury. The verdict of the jury was as follows:

"We, the jury, find the defendant, J. W. McGee, guilty as charged in the indictment."

Where there is only one count of an indictment sustained by the evidence, a general verdict of guilty will be referred to that count. Owens v. State, 104 Ala. 18, 16 So. 575; Jurzak v. State (Ala. App.) 97 So. 178.

Under an indictment charging forgery in the second degree, a verdict finding the defendant guilty as charged in the indictment, without specifying the degree of forgery, is sufficient. Anderson v. State, 65 Ala. 553.

H. C. McGee, witness for defendant, was questioned concerning the mental condition of defendant, witness' father, before he (witness) went to the army about five years theretofore. Objections to such questions were sustained. However, the witness answered that he "didn't notice anything peculiar about him before he left for the army." The answer of the witness was allowed to remain in evidence. Defendant cannot complain of injury, where the jury had the full benefit of the answer elicited by the question objected to.

Several exceptions were reserved to the action of the trial court in overruling objections of defendant to questions propounded by the state to various witnesses. In those instances where no motion was made to exclude the answer, no question as to error of the trial court is properly presented for review. Rector v. State, 11 Ala. App. 333, 66 So. 857; Johnson v. State, 4 Ala. App. 62, 58 So. 754.

The record fails to disclose the filing of a plea of not guilty by reason of insanity, although there was evidence introduced for the purpose of proving such a plea. In the state of the record, the only plea shown being not guilty, all evidence in support of a plea of not guilty by reason of insanity was immaterial.

Defendant insists that he was entitled to the general charge, for the reason that the evidence did not show that the offense was committed in Lauderdale county; that the venue was not established. Circuit court rule 35 provides:

"Whenever the general charge is requested, predicated upon the failure of the proof as to time, venue, or any other point not involving a substantial right of recovery or defense, or because of some immaterial omission in the evidence of the plaintiff or defendant, the trial court will not be put in error for

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