Wyatt v. State
| Decision Date | 10 January 1952 |
| Docket Number | 5 Div. 520 |
| Citation | 57 So.2d 366,257 Ala. 90 |
| Parties | WYATT v. STATE. |
| Court | Alabama Supreme Court |
L. H. Ellis, Columbiana, and J. B. Atkinson, Clanton, for petitioner.
G. C. Walker, Clanton, Godbold & Hobbs, Montgomery, and Holley, Milner & Holley, Wetumpka, amici curiae.
Si Garrett, Atty. Gen., and Bernard F. Sykes, Asst. Atty. Gen., opposed.
This case comes here by writ of certiorari to the Court of Appeals to review the opinion and judgment of that court affirming the conviction of petitioner, Delene B. Wyatt, for the offense of forgery in the second degree.
We are in agreement with the opinion of the Court of Appeals, but granted certiorari to elaborate on two propositions treated in the opinion of that court: (1) whether or not the indictment charged forgery in the third degree rather than forgery in the second degree, as ruled by the trial court; and (2) the question of the sufficiency of the indictment as against the demurrer interposed. All other reviewable questions appear to us to have been fully treated in the opinion of the Court of Appeals.
One proposition argued here, that the indictment was amended without the consent of the defendant in violation of § 253, Title 15, Code 1940, when the court permitted the amendment of the minutes nunc pro tunc, showing the organization of the court and impaneling of the grand jury, is not reviewable. That matter was not treated in the opinion of the Court of Appeals, Ex Parte Stephenson, 252 Ala. 316, 40 So.2d 716, nor was it made the basis of a ground for error in the petition for certiorari.
(1)
We reproduce the instrument alleged to have been forged:
First National Bank State of Alabama
of Clanton No. 554
Clanton, Alabama County Commission of Chilton County
Pay this warrant, when properly Clanton, Ala. Dec. 2 1946
endorsed, from the fund of To the Treasurer, $56.00
Chilton County, Alabama, Chilton County, Alabama
designated below
W.M. Polk
----------------------------------
Treasurer, Chilton County, Alabama
By ----------- Asst. Atty. in Fact The sum of Fifty Six & No/100.... Dollars
Gasoline Fund for Labr
---------------------------------
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Pay out of any moneys, not otherwise
To Dewey Robinson appropriated, in GASOLINE FUND of
Or said County
Order J. Lee Smith
-----------------------------------------
President, County Commission of Chilton
Co., Alabama
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with the following endorsement on the back thereof: 'Dewey Robinson.'
The indictment did not charge the forgery of the instrument itself, but charged the forgery of the endorsement of the instrument by forging the name of Dewey Robinson thereon. The question, therefore, is whether that offense constitutes forgery in the second degree.
The offenses denounced by our statute as forgery in the second degree include (for present purposes) the forgery of (1) an instrument purporting to be the act of another whereby an interest in property purports to be affected; (2) any negotiable instrument or the endorsement of it; (3) any instrument in writing purporting to be the act of another by which any pecuniary demand or obligation purports to be created, discharged or diminished.
And such an instrument, upon the assumption of its genuineness, must have the capacity to injure or defraud. Burden v. State, 120 Ala. 388, 25 So. 190.
So the question is whether the endorsement of the instrument set out in the indictment and reproduced above is either (1) an instrument in writing which purports to affect an interest in property, or (2) whether the instrument was a negotiable one, or (3) whether the endorsement of the instrument purports to be such an act as to create, discharge or diminish a pecuniary demand or obligation.
The Court of Appeals held the indictment to charge forgery in the second degree under the first alternative above, and we are in accord with that conclusion, but also think the offense provided by the third alternative too. We do not consider that the offense could be embraced under the second alternative--forgery of negotiable instruments, etc.
Undoubtedly the endorsement of the instrument affected an interest in property. The endorsement of the instrument is itself a contract in writing which purports to transfer, convey or affect the ownership of the warrant so endorsed, which is property subject to ownership. We attain this conclusion in this manner:
As observed, the indictment charges the forgery of the endorsement of the instrument reproduced hereinabove. Had that instrument purported to be a negotiable instrument, a note, its endorsement in regular course would have warranted to subsequent holders in due course that the instrument is genuine in all respects according to its purport. § 68, Title 39, Code 1940. That is, (1) that it shall be paid on presentment; (2) that the instrument and signature of all prior parties on it are genuine; (3) that it is valid according to its purport; (4) that the parties to it are competent to contract; (5) that the endorser has the title to the paper and the right to transfer it. Jordan v. Long, 109 Ala. 414, 417, 19 So. 843, 844; Scarbrough v. City National Bank, 157 Ala. 577, 48 So. 62.
It is a different contract in writing from that of the original obligation. The stipulations imported by the endorsement constitute a new contract independent of that of the maker of the note, based upon a new and independent consideration and imposing liabilities and obligations on the endorser which do not rest upon the maker. Woodlawn Federal Savings & Loan Ass'n v. Williams, 237 Ala. 446, 187 So. 177; Jordan v. Long, supra, 109 Ala. at page 417, 19 So. 843.
Section 200, Title 39, Code, provides that all bonds, contracts, and writings for the payment of money or other thing or the performance of any duty (nonnegotiable instruments) are assignable by endorsement. This applies to State warrants, Rushing v. Alabama National Bank, 226 Ala. 621, 148 So. 306 and therefore, of course, to county warrants too; and the endorser of such a nonnegotiable instrument is liable to the endorsee to the same extent as the endorser of a negotiable instrument, the only difference being the essentials of an action to fasten liability on such an endorser by reason of his endorsement thereon. Bank of Luverne v. Sharp, 152 Ala. 589, 592, 44 So. 871. Of course, the indictment seeking to charge a forgery of an endorsement of an instrument should so allege, Brown v. State, 242 Ala. 485, 7 So.2d 28, as the instant indictment does.
Therefore, the endorsement alleged to have been forged purported to be the act of Dewey Robinson, a person other than defendant, and such endorsement of the instrument was a contract in writing purporting to transfer, convey or affect the ownership of the warrant or an item of property or to create a pecuniary obligation on his part, and having the capacity to injure or defraud, the offense declared on is within the two alternatives of the provisions of § 200, Title 14, supra, defined as forgery in the second degree.
(2)
Able counsel argue with much cogency that the Court of Appeals erred in affirming the trial court's action in overruling defendant's demurrer to the indictment on the ground that the instrument set forth in the indictment as the subject of the alleged forgery is invalid on its face and that a simple charge of forging it, without alleging extrinsic facts tending to show validity of the instrument, in fact does not show an offense. Our case of Gooch v. State, 249 Ala. 477, 31 So.2d 776, 174 A.L.R. 1297 (), among others, is relied on.
The ground of invalidity of the instrument is said to be in its signature. Boiled down to its essence, the argument is that the warrant is not drawn or signed in the manner prescribed by law, specifically, that the legal designation of the governing body of Chilton County is 'the court of county commissioners,' citing Code 1940, Title 12, § 5, whereas the instrument is signed by the judge of probate as 'President, County Commission of Chilton Co.' etc. Reliance is also had upon § 114, Title 12, prescribing that when a claim against the county has been audited and allowed by the court of county commissioners, 'the judge of probate must give the claimant a warrant on the treasury for the amount so allowed'.
We do not think the indictment is subject to the stated objection. The instrument is a warrant or order drawn upon the treasury of Chilton County for the payment of a sum of money for labor out of a specified county fund. The several sections embraced in Chapters 2, 6, and 8...
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