Smith v. State

Decision Date22 May 1928
Docket Number4 Div. 377
Citation118 So. 594,22 Ala.App. 590
PartiesSMITH v. STATE.
CourtAlabama Court of Appeals

Rehearing Denied Aug. 7, 1928

Appeal from Circuit Court, Pike County; W.L. Parks, Judge.

J.A Smith was convicted of forgery, and he appeals. Affirmed.

Certiorari denied by Supreme Court in Smith v. State, 118 So 595.

D.A Baker, of Troy, for appellant.

Charlie C. McCall, Atty. Gen., for the State.

SAMFORD J.:

The indictment is as follows:

"The grand jury of said county charge that before the finding of this indictment J.A. Smith (alias Arthur Smith) with intent to injure or defraud, did alter, forge, or counterfeit a certain instrument in writing, which was in substance as follows:
" 'I release this day to J.A. Smith my place known as stock farm place or Myrick place for five years, 1923, 1924, 1925, 1926, 1927, for five hundred dollars, or the fourth of the crop, I furnish fourth of seed and fertilizer and I agree to pay for all the work done on this place by J.A. Smith for repairing and building. I furnish all lumber, nails, covering windows, doors, and work done in Kudzu field at a reasonable price, plowing, clearing, digging, hauling Kudzu.
" 'This January 3, 1923.

J.M. Watkins.

" ' Witness: J.A. Smith.'

--or with intent to injure or defraud, did utter and publish as true the said falsely altered, forged, or counterfeited instrument in writing, knowing the same to be so altered, forged, or counterfeited.

"(2) The grand jury of said county further charge that before the finding of this indictment J.A. Smith (alias Arthur Smith), with intent to injure or defraud, did alter, forge, or counterfeit a certain receipt, which was in substance as follows: " 'Nov. 15, 1923.
" 'Received of J.A. Smith one fifty 71/100 on rent in full dollars for 1923 crop. ck 93.87; cash 56.84.

J.M. Watkins.'

--or, with intent to injure or defraud, did utter and publish as true, the said falsely altered, forged, or counterfeited receipt, knowing the same to be so falsely altered, forged or counterfeited, against the peace and dignity of the state of Alabama."

The verdict of the jury was: "We the jury find the defendant guilty as charged." It is insisted that the verdict of the jury is contrary to the evidence, in that the indictment charges forgery in the first degree, and the evidence discloses an instrument which could only be the subject of forgery in the second degree.

The fault of this contention lies in the fact that both counts of the indictment charge forgery in the second degree. It is quite true that the indictment does not follow verbatim form 62, § 4556. in the Code, which is prescribed as a sufficient charge for forgery in the second degree, nor is this...

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8 cases
  • Flournoy v. State, 8 Div. 606.
    • United States
    • Alabama Court of Appeals
    • May 18, 1948
    ... ... of punishment are the same, they may be joined in the same ... indictment in different counts. Sampson v. State, ... 107 Ala. 76, 18 So. 207; Lowe v. State, 134 Ala ... 154, 32 So. 273; Myrick v. State, 20 Ala.App. 18, ... 100 So. 455; Smith v. State, 22 Ala.App. 590, 118 ... So. 594; Asberry v. State, 24 Ala.App. 375, 135 So ... 605. While offenses of the category above mentioned may [34 ... Ala.App. 26] be joined in one count in the alternative, as ... provided in Section 249, Title 15, Code of Alabama 1940, only ... if the ... ...
  • Owens v. Bolt
    • United States
    • Alabama Supreme Court
    • November 8, 1928
    ... ... notice." As noted in our former decisions, our statute ... was modeled after that of the state of Georgia ... In ... Hale v. Tyson, 202 Ala. 107, 79 So. 499, this court ... reviewed the decisions defining the lien of attorneys at ... ...
  • Fuller v. State
    • United States
    • Alabama Supreme Court
    • May 15, 1952
    ...of an application for insurance in Dudley v. State, 10 Ala.App. 130, 64 So. 534. 'To the same effect was the holding in Smith v. State, 22 Ala.App. 590, 118 So. 594, in reviewing an alleged forged release to right or interest to 'An examination of 37 C.J.S., Forgery, § 36, p. 55, will discl......
  • Harger v. State, 1 Div. 482
    • United States
    • Alabama Court of Criminal Appeals
    • November 12, 1974
    ...v. State, 107 Ala. 76, 18 So. 207; Lowe v. State, 134 Ala. 154, 32 So. 273; Myrick v. State, 20 Ala.App. 18, 100 So. 455; Smith v. State, 22 Ala.App. 590, 118 So. 594; Asberry v. State, 24 Ala.App. 375, 135 So. 605. While offenses of the category above mentioned may be joined in one count i......
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