
    Williams v. The State.
    
      Indictment for Forgery.
    
    1. Forgery; sufficiency of indictment. — An indictment which charges that the defendant, “with intent to injure or defraud, did falsely make or forge an instrument in writing in words and figures substantially as follows,” and then sets out the instrument alleged to have been forged, which was a bank check, sufficiently charges the offense of forgery; 'and in such an indictment a conviction may be had for forging the name of the drawer of the check, although he may have been a fictitious person.
    2. Same; offense can be committed by signing name of fictitious person. — A forgery may be committed by the falsely making of an instrument in the name of a fictitious person.
    3. Same; admissibility of evidence. — On an indictment charging the forgery of a bank check, wherein the defendant is a beneficiary, the testimony of a person to whom the check was disposed of by the defendant, that he made inquiry of the person whom the defendant informed him drew the check, and also of another person bearing the same surname, and that he was unable to find any person who bore the same name as the one signed to the cheek, the check is admissible in evidence as tending to prove that the name affixed to the check as drawer was that'of a fictitious person.
    4. Same; same. — On a trial under indictment for forgery of a bank check, it is competent for the teller in the bank on which the check was drawn to testify that no person bearing the name affixed to the alleged forged instrument as drawer kept or had any- account with said bank; and such testimony is prima facie evidence of the fictitious character of the check.
    5. Same; inference as to the act of forgery. — On a trial under an indictment for the forgery of a bank check, in which the defendant is named as a beneficiary in said check, where there is evidence tending to show that the name of the drawer of said check was fictitious, it is a question for the jury to determine whether or not the drawer was a real person or was fictitious; and if the name of the drawer affixed to said check was fictitious, an inference that the defendant forged said instrument, arises from proof of the fact that he uttered and published it as true.
    (1. Same; fact that forged check had no revenue stamp no objection to its admissibility in evidence. — On a trial under an indictment for the forgery of a bank chock which is set out in haec verba in an indictment, it is no objection to the introduction of the check described in the indictment that it was not stamped with a revenue stamp as required by the act of Congress.
    7. Same; admissibility of evidence. — On a trial under an indictment for the forgery of a bank check, where the evidence tends to show that the name affixed to .the alleged forged check was fictitious, it is competent for the State to prove that at the time of the negotiation of the check in question the defendant had other checks signed by the same name, and also that he negotiated another check signed by the same name to a third party.
    8. Same; retu/rn of money no defense. — On a trial under an indictment for forgery of a bank check, the fact that the defendant refunded to the person to whom he negotiated the .forged instrument the money obtained from him upon the sale of said cheek after the hank’s refusal to honor it, is no defense.
    9. Same; indictment; not necessary to aver intent to defraud any particular person. — Under our statute, (Code, § 4908) a general allegation in an indictment charging forgery of an in- ' tent on the part of the defendant to defraud, without naming any particular person or corporation, intended to be defrauded, is sufficient; and if it is shown on the trial* that the intent to defraud induced the forgery or. utterance of the spurious instrument with capacity to defraud any person, the offense is complete.
    Appeal from the City Court of Montgomery.
    Tried before the ITon. A. I). Sayre.
    The appellant in this case, Stephen Williams, ivas indicted, tried and convicted for forgery and sentenced to the penitentiary for three'years. The indictment was in the statutory form and set out the instrument alleged to have been forged in haec verba. This instrument was a check on the Bank of Montgomery for fifteen dollars signed by J. D. Johnson and made payable to the “order of Stephen Williams.” On the trial of the case, W. A. LaPrade, a witness for the State, testified that he obtained the instrument which was the check described in the indictment from the defendant; that at the time the check ivas given to him, the defendant told him that it had been signed by Johnson, who lived in the southern suburbs of the city of Montgomery, and given to the defendant for the payment of work done for said Johnson. The witness LaPrade was asked whether he ever saw any other check signed by J. D. Johnson, in the possession of the defendant? The defendant objected to this question, on the ground that it called for illegal and incompetent ■evidence, and that the answer of the witness could have no tendency to prove or disprove the allegations of the indictment. The court overruled the objection, and the defendant duly excepted. The witness answered that he had seen other checks, and upon being asked how many checks the defendant liad at the time referred to, he answered'“as many as two or three.” This last question was asked and the answer thereto allowed to go to the jury, against the objections and exceptions of the defendant. The witness was then asked by the solicitor to state whether he had ever made any effort to find J. D. Johnson? The defendant objected to this question on the ground that it called for illegal, irrelevant and incompetent evidence, and that there was no averment in the indictment that J. D. Johnson was a fictitious person, and that the answer to the question did not tend to prove or disprove the allegations of the indictment. The court overruled this objection and the defendant duly excepted. The witness answered that he had made inquiries but had never found him, and then detailed the effort he had made to find J. D. Johnson, stating that the man referred to by the defendant as being the one who had signed the check, denied having made it, and stated that his name was not J. 1). but. A. B. Johnson. It was then shown that the check was never paid. The State then offered to introduce in evidence the check referred to, and which was described in the indictment. The defendant objected to the introduction in evidence of said check upon the ground that there was no evidence that J. I). Johnson did not sign the check; and that said check was not stamped in accordance 'with the revenue laws of the United States. .The court overruled this objection, allowed the check to be introduced in. evidence, and to this ruling the defendant duly excepted. The witness LaPrade then testified that the next time he saw the defendant he told him that the check had not been paid, and that the defendant then paid him the amount of said check; and further testified that he did not know who signed the check; that he had seen the defendant’s handwriting, and that the check was not in the handwriting of tlie defendant. 'The State then introduced as a witness one Joshua Jones, who testified that he was paying teller of the Bank of Montgomery during the month of August, 1899, which Avas the month in Avhich the check was alleged to have been draAvn. Upon being handed the cheek he was asked if it was paid. The defendant objected to this question on the ground that it called for illegal, irrelevant and incompetent evidence, and duly excepted to the court’s overruling his objection. The witness answered that the check had not been paid. This witness was further asked the following question: “Did any such person as J. D. Johnson have a deposit with your bank?” The defendant objected to this question upon the same grounds as interposed to the other question, and duly excepted to the court’s overruling his objection. The witness answered that no person of the name of J. D. Johnson had a bank account in said bank. The defendant as a witness in his own behalf testified that he had the check introduced in evidence and transferred it to the witness LaPrade and re-received from him, LaPrade, the sum of $15; that he, the defendant, received the check from a man who lived in the southern suburbs of the city of Montgomery, for whom he had done work, and that the man who gave him the check stated that his name was J. D. Johnson; that Johnson owed him $30 or $35 for work done by him, and that this check was in part payment of that debt; that he did not sign the check, and that when he found out from LaPrade that the check was not paid, he paid him the amount thereof. Upon his cross-examination, the defendant stated that he knew one S. O. Bray, and the solicitor asked the defendant if he did not give Bray a check signed J. D. Johnson. The defendant objected to this question, on the ground that it called for illegal, irrelevant and incompetent evidence, and duty excepted to the court’s overruling his objection. The witness answered that he did give Bray a check.
    The court in its general charge to the jury instructed them ex mero motu as follows: “The fact that the defendant paid the amount mentioned in the check to LaPrade after LaPrade discovered that the check was of no value, cuts no figure in this case; that is to say, it is no excuse for the defendant if he forged the check.”
    The defendant requested the court to give to the jury the following written charges, and separately excepted to the court’s refusal to give each of them as asked: (1.) “If the jury believe the evidence, they must find the defendant not guilty.” (2.) “Unless J. D. Johnson was a real person the defendant can not be convicted under this indictment.” (3.) “It is immaterial whether or not there was any bank account of J. D. Johnson at the Bank of Montgomery.” (4.) “Before the defendant can be convicted each and every man on tliis jury must be morally certain that the check alleged to have been falsely made or forged was so done with an intent to injure or defraud W. A. LaPrade.” (5.) “The jury must attach no importance to the evidence that other checks than the one introduced in this case were given by Steve Williams.” (G.) “The fact that Steve Williams paid the check is a circumstance in his favor.”
    Hill & Hill, for appellants.
    The question asked the witness LaPrade “Did you ever see any other checks signed J. D. Johnson that the defendant had?” was patently subject to the objections of the defendant. A responsive answer to the question asked could not under any phase of the case be clothed with relevancy and competency. — 3 Greenleaf on Evidence, §§ 111, 111a; [13th ed.) and notes; Tharp v. State, 15 Ala. 756; McDonald i\ State. 83 Ala. 48; 8 Amer. & Eng. Encyc. of Law, (1st. ed.), 531 and 532; Whitaker v. State, 106 Ala. 32.
    Chas. G. Brown, Attorney-General, for the State.
    The indictment was'in the form prescribed by the Code. There was no necessity for alleging that J. 1). Johnson was a fictitious person. — See Criminal Code of 1896, Form 51; Thompson r. State, 49 Ala. 16; 2 Bishop’s New Cr. Law, § 543.
    “'Forgery may be committed by the false making of a written instrument in the name of a fictitious person; and neither the fact that the drawer of the forged cheek is a fictitious person, nor that the drawer had any funds in the hank, is any defense to the indictment.” — 2 McClain’s Cr. Law § 766; People r. Marion, 29 Mich. 31; State v. Minion,, 116 Mo. 605; Regina v. Rogers, 8 C. & P. 629.
    “Evidence'that no- person of the character and address represented on the instrument is to be found is prima facie evidence of the non-existence of said person.” People, v. Eppinger, 105 Cal. 36; Rex v. Baokler, 5 C. & P., 118.
    • Defendant need not have written the instrument; sufficient if it was written by another through his procurement or consent. — Elmore v. State, 92 Ala. 51. Under an indictment for forgery there can be a conviction for proof of uttering with guilty knowledge and fraudulent intent. — Code, § 4720; Gardner v. State, 96 Ala. 12; People v. Kemp, 76 Mich. 416; Gassenheimer v. State, 52 Ala. 318.
    The Stamp Act is treated as a mere revenue law, and an unstamped check is not deemed a nullity, and the forgery of an instrument required to be stamped is indictable. — 2 Bishop’s New Cr. Law, § 540. An instrument which shows on its face that it was issued with the intent to circulate as money, though prohibited under heavy penalties, civil and criminal, is not void and may be the subject of forgery. — Kelson v. State, 82 Ala. 463.
    Certainly the fact that defendant subsequently paid back the money obtained on the forged instrument could bp no defense.- — -2 Bishop’s New Cr. Law, § 598; Jones v. State, 118 Ala. 163. When the necessary consequences of any act is to defraud, the jury may infer the fraudulent intent.- — Curtis v. State, 118 Ala. 125; Benson v. State, 26 So. Rep. 120.
   TYSON, J.

The indictment is in the Code form setting out the check in haec verba alleged to have been forged. Under it, a conviction may be had, for forging the name of the drawer of this check, although he may have been a fictitious person.—Thompson v. The State, 46 Ala. 16; The State v. Givens, 5 Ala. 747; 2 Arch. Cr. Pr. & Pl. 1585; 2 McClain’s Cr. Law, §§ 764, 792, 804.

That a forgery, as we have intimated, may' be committed by the false making of a written instrument in the name of a fictitious person is too well settled to admit of controversy.—Thompson v. The State, supra; The State v. Givens, supra; 2 McClain’s Cr. Law, § 764 and authorities cited in note 10; 2 Bishop’s New Cr. Law, § 543; 13 Am. & Eng. Ency. Law (2d ed.) 1088 and note 2.

The testimony of La Prade, a witness introduced by the State, that lie made inquiry of the person whom the defendant informed him drew the check and also of another person by the name of Johnson as its drawer, at * the instance of the defendant, and that he was unable to find any person named Johnson, whose initials were “J. 13.” ivas competent as tending to establish that the name of the drawer of the check had no existence — that the name affixed as drawer was that of a fictitious person.— 13 Am. & Eng. Encyc. Law - (2d ed.) 1112 and note 10. “Where inquiries are to be made in regard to the residence of any supposed party to a forged instrument, it is proper and usual to call the police officers, penny-postmen, or other persons well acquainted with the place and its inhabitants; but if the inquiries have been made in the place by a stranger, his testimony, as to the fact and its results, is admissible to the jury, though it may not be satisfactory proof of the non-existence of the person in question.”—3 Greenleaf on Ev. § 109. See also People v. Sharpe, 53 Mich. 523.

For the same reasons, it was entirely competent for the State to show by the paying teller of the bank upon which the check was drawn, that it ivas not paid and that the drawer had no account or funds with the bank. People v. Eppinger, 105 Cal. 36; Rex v. Backler, 5 Car. & P. 118; Rex v. Brannan, 6 Car. & P. 326; 3 Greenleaf on Ev. § 109.

In People v. Eppinger, supra, the court said: “The testimony of the teller in the bank on which the check was drawn that no firm 'by the name of Howell & Co. kept or had any account in his books, was prima facie evidence of the fictitious character of the check.” This proposition is supported by the other authorities cited above in connection with this case.

Under the evidence it ivas a question for the jury to determine whether or not the name of the drawer was fictitious. If fictitious, the case is one in which the defendant being in possession of the check drawn by a person having no existence, sold it 'to LaPrade for value. If the drawer had no existence, of necessity the name must have been affixed by some one without authority— a forgery. The defendant having uttered it, as we have shown, and the check being payable to his order, the jury were authorized to infer an intent to defraud and that he, himself, forged it.—Curtis v. The State, 118 Ala. 125; Allen v. The State, 74 Ala. 557; Stein v. The State, 37 Ala. 123; 13 Am. & Eng. Encyc. Law (2d ed.) 1113.

It is said in Hobbs v. The State, 75 Ala. 6, that “One found in the possession of a forged instrument of which he purports to he the beneficiary, and applying it to his own uses, must, in the absence of explanation, be presumed to have fabricated it, or to have been privy to its fabrication. It is difficult to conceive that he couid have the possession unless he had fabricated it, or assented to its fabrication; and the presumption grows stronger, when he uses or attempts to use it.”

As to whether the explanation offered by the defendant as to his possession of the check, etc., was satisfactory, was for the jury.

The objection to the introduction in evidence of the check because not stamped as required under the act of Congress, is without merit.—2 Bishop’s New Cr. Law, § 540, and note 5; Nelson v. The State, 82 Ala. 44.

Bo, too, it was entirely competent for the State to prove by the defendant that he negotiated another check to one Bray drawn by J. D. Johnson, and by witness LaPrade that he saw the defendant with another check signed by J. I). Johnson. He is shown to have had only one transaction with LaPrade, and he testifies to only one with Johnson, from whom he says he got the checks. 13 Am. & Eng. Encyc. Law (2d ed.) 1109 and 1110 and notes; 2 McClain’s Cr. Law, § 808 and notes 2 and 3; Sharpe v. The State, 83 Ala. 48.

The fact that the defendant refunded to LaPrade the money obtained from him upon the sale of the forged check after the bank’s refusal to honor it, is no defense. 2 Bish. New Cr. Law, § 598; Jones v. The State, 50 Ala. 163.

Under our statutes a general.allegation of intent to defraud without naming any particular person or cornoration is sufficient (§ 4908) ; and “if the intent induces the forging or utterance as genuine of a spurious instrument with the capacity to defraud any person, the offense is complete.”—Benson v. The State, 124 Ala. 92.

It is clear under the principles we have announced, that the court committed no error in its rulings upon the trial of the cause.

Affirmed.  