Wyatt v. State, 5 Div. 520

• Court: Supreme Court of Alabama
• Citation: 57 So.2d 366,257 Ala. 90
• Docket Number: 5 Div. 520
• Parties: WYATT v. STATE.
• Decision Date: 10 January 1952

Page 366

57 So.2d 366 257 Ala. 90 WYATT
v.
STATE. 5 Div. 520. Supreme Court of Alabama. Jan. 10, 1952.
Rehearing Denied March 13, 1952.

[257 Ala. 91]

Page 367

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.

SIMPSON, Justice.

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.

Page 368

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.

[257 Ala. 92] (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.
                 ---------------------------------
                -----------------------------------------------------------------------------
                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.
                -----------------------------------------------------------------------------
                

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

Page 369

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. [257 Ala. 93] § 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...