
    Beal v. The State.
    
      Indictment for Forgery.
    
    1. Forgery; admissibility of evidence. — On a trial under an indict- ■ ment, charging the defendant with having forged a mortgage which was given to a hank where the president of the bank testified, as a witness, to the execution of the alleged forged instrument, by the defendant, it is competent for the defendant to ask such witness, upon cross-examination, as to whether or not, prior to the present prosecution, he'did not " “prosecute defendant by swearing out a warrant against him for selling the mortgaged property, — the same property mentioned in your mortgage?” involved in the present suit.
    2. Same; same. — On a trial under an indictment charging defendant with having forged a mortgage, where one of the attesting witnesses testified that he signed the mortgage, as a witness, and another witness testified that he saw the defendant sign it, the execution of the mortgage is sufficiently proved to authorize its admission in evidence; and where the mortgage inquired about is not' set out in the bill of exceptions, a ruling upon an objection to the introduction of such mortgage in evidence, upon the ground that there was a variance between it and the one copied in the indictment, will not be reviewed on appeal; the burden being on the party taking the appeal to affirmatively show error to his prejudice.
    3. Evidence; proof as to manner of copying paper. — A record is proved, not by the manner in which is was copied, but by the production and inspection of the original papers, or an exemplified and authenticated copy; and, therefore, where a clerk in the office of the judge of probate testifies as to his having recorded a paper which was introduced in evidence, it is not competent to ask such clerk whether “in copying a paper on the record, do you always undertake to copy it as it is?”
    4. Trial and its incidents; right of judge to ash witness question. In the trial of a case it is permissible, and is within the province of the court, for the court to ask a witness, who is being examined, such questions as it may deem necessary to elicit relevant and material evidence without regard as to whether such evidence will be beneficial or prejudicial to the one party or the other.
    5. Same; charge of court to jury. — A trial court cannot be put in error for the refusal to give a charge requested by defendant, which is a substantial repetition of a charge previously given at the defendant’s request.
    6. Forgery; charge of court to jury. — On a trial under an indictment which charges the defendant with having forged a mortgage, a charge requested by the defendant asserts a correct proposition of law and should be given which instructs the jury “that if the defendant owned all of the property set out in the indictment at the time of making the mortgage, and it was the defendant’s intention at that time that the property mentioned in the mortgage should be conveyed and held liable for the debt specified in the mortgage, then they should find the defendant not guilty.”
    Appeal from the City Court of Anniston.
    Tried before the Hon. Thomas W. Coleman, Jr.
    The appellant in this case was indicted under the name of William E. Beal for the forgery in the execution of a mortgage, was convicted and sentenced to the penitentiary for two years. In the indictment, the document alleged to have been forged was set out in full. The name signed to the mortgage was “F. A. Beal” and the mortgagor describes himself in the mortgage as “F. A. Beal.” The mortgage set out at length" in the indictment purports to have been witnessed by Prank Leigh and .Arthur Wellborn. The testimony for the State identified the defendant as the person who executed the mortgage alleged, to have been forged to the City National Bank, and the evidence tended to show that the defendant signed the same as “F. A. Beal.” The defendant, as a witness, in his own behalf, 'testified that he executed the mortgage set out in the indictment, and signed it as F. A. Beal; that his name was “W. E. F. A. Beal,” and that sometimes he used the first two initials in signing a paper and sometimes the last two, in signing a paper; that in the execution of the mortgage set out in the indictment, he signed his name as “F. A. Beal.” The father of the defendant testified that his son’s name ivas “W. E. F. A. Beal.” There were several witnesses introduced by the State, who testified that they knew the defendant as “W. E.” or “Willis” Beal, and that they had known him for a number of years, and that they had never heard of his being named “F. A. Beal.” The other facts of the case necessary to an understanding of the decision of the present appeal are sufficiently stated in the opinion. Among the charges given by the court, at the request of defendant, was the following: (1.) “The court charges the jury that if they believe from the evidence that the defendant at the time of the making of the mortgage owned the property set out in the indictment, and made the mortgage with, no intent to injure or defraud, then you should find the defendant not guilty.” Defendant requested the court to give the jury the following written charges and to the court’s refusal to give each of them, as asked, duly excepted: (1.) “I charge you, gentlemen of the jury, that if the defendant made the moidgage set out in the indictment without having at the time, the intention to injure or defraud, then you should find the defendant not guilty.” (2.) “The. court charges the jury that if the defendant owned all of the property set out in the indictment, at the time of making the mortgage, and that it. was the defendant’s intention at that time, that the property mentioned in the mortgage should be conveyed and held liable for the debt specified in the mortgage, then they should find the defendant not guilty.”
    
      T. O. Sensabaugh, for appellant, cited.
    
    Prince v. State, 100 Ala. 144; Lodge v. State, 122 Ala. 98-99; Salín v. State, 89 Ala. 53.
    Massey Wilson, Attorney-General, for the State.
    The witnesses Leigh and McElrath testified that they attested the execution of the mortgage; McElrath stating that he. saw defendant sign the mortgage. This was sufficient evidence of its execution and authorized its admission in evidence, unless there was a variance, as contended by defendant. The instrument introduced is not set out in the record and this court can not say whether there Aims a variance or not. — Burns v. State, 39 Ala. 370, 373; Shelton v. State, 64 Ala. 565; Burgess v. Mig. (Jo., 115 Ala. 473; Coker v-. Ferguson, 70 Ala. 284.
    Whether or not the Avituess Wellborn prosecuted the defendant by swearing out a Avarrant against him for selling mortgaged property, was immaterial. If the question had been ansAvered in the affirmative it would not have shoAvn, without more, any hostile feeling on the part of the witness toAvards defendant. — Carpenter v. State, 9S Ala. 31; Moore v. State, 68 Ala. 360; Morgan v. Deem, 88 Ala. 224.
   HARALSON, J.-

1. The mortage set out in the indictment purports to haAre been signed by F. A. Beal, and witnessed by Frank Leigh and Arthur Wellborn.

The bill of exceptions recites that “Frank Leigh, witness for the State, upon being handed the mortgage set out in the indictment, testified, that the signature, Frank Leigh, signed to said mortgage was his signature.” J. W. McElrath testified for the State, that he was present in the bank at the time said mortgage was giA'en and saAV defendant sign the same, and the Avitnesses thereto signed it as Avitnesses, while the defendant Avas present, and before the money was paid to him. M. B. Wellborn, the president of the bank, testified, that he was present at the time, as Avere defendant, Leigh, McElrath and Arthur Wellborn; that he kneAV the "defendant, and he was the man Avho signed the mortgage to secure the indebtedness therein, and that when the mortgage became due, he tried to find F. A. Beal and the property mentioned in the mortgage but could find neither. On the cross, defendant’s counsel asked witness : “Did you not, last Fall, prosecute defendant by swearing out a warrant against him for selling mortgaged property, — the same property mentioned in your mortgage?” 6n objection made by the solicitor, the question was not allowed to be answered. In this there was error. If the witness had sued out the warrant inquired about, it might have implied bad feeling towards the defendant at that time, but whether so or not, or whether any bad feeling, if any, continued or not, were questions for the jury. This case is clearly distinguishable from the case of O’Neal v. Curry, 134 Ala. 217.

2. The witness Leigh, testified that he attested the mortgage as a witness, and McElrath testified that he saw defendant sign it. This evidence of its execution, was sufficient to authorize its admission in evidence. The mortgage is not set out in the transcript, though the evidence tended fully to identify it with the one set forth in the indictment. Without its being set out this court could not pass intelligently on defendant’s objection to it, — that there was a variance between it and the one copied in the indictment. The burden was on the party taking the bill of exceptions, to affirmatively show error to his prejudice, or the ruling will not bo disturbed. — Burns v. The State, 49 Ala. 370; Shelton v. St. Clair, 64 Ala. 565; Burgess v. A. G. S. R. R. Co., 115 Ala. 473.

3. There was no error in sustaining an objection to the question asked the witness, John Crook, who was clerk in the probate office, viz.: “In copying a paper on the record, do you always undertake to copy it as it is?” A record is proved, not in the manner attempted, but by the production and inspection of the original or of an exemplified or authenticated copy. — -King v. Martin, 67 Ala. 177; Pearce v. Clements, 73 Ala. 258.

4. The witness, Lester, for the State, had testified, that he had the mortgage in question for collection in the Fall of 1902, and was unable to find the property or defendant, F. A. Beal — the mortgagor; that he had known the defendant for several years, and had known him as W. E. Beal, and that he had gone to the house of defendant’s father, looking for F. A. Beal. The defendant’s father, J. F. Beal, had testified that the defendant and another one of his sons lived with him in the Fall of 1902; that defendant’s initials were W. E. F. A. Beal, and he sometimes, in signing 1ns name, used W. E. and sometimes F. A. Bealthat he remembered Lester coming to his house, claiming to have a mortgage given by defendant to one- O. J. Porter; that Lester said nothing about .a mortgage by his son to the bank, made no inquiry for F. A. Beal while he was at witness’ house, and that witness pointed out to him property belonging to defendant. E. L. Lester ivas recalled in rebuttal, and testified that defendant’s father did not show him property that belonged to defendant, and besides, that he had no mortgage given by defendant to C. J. Porter. The court asked the witness: “Did you, when you Avent to the house of defendant’s father, ask defendant’s father for F. A. Beal?” In this there aves no error. The evidence called for was relevant. It is always permissible for the court and its duty, to propound to Avitnesses such questions as it is deemed necessary to elicit any relevant and material evidence, without regard to its effect, — whether beneficial or prejudicial to the one party or the other. The development and establishment of the truth is its province and duty. — Sparks v. State, 59 Ala. 82.

5. Charge 1 requested by defendant and refused Avas a substantial repetition of charge 1 given for him, and was, therefore, properly refused.

Charge 2 refused to defendant asserts a correct proposition of laAV, and was not substantially given, as contended, in either of the given charges 1 and 2.

For the errors indicated the judgment must be reversed.

Reversed and remanded.  