Henderson v. State , 120 Ala. 360 ( 1898 )

DOWDELL, J.

The defendant was tried and convicted in the circuit court of Henry county under an indictment for forgery. The instrument alleged to have been forged, as set out in the indictment, is as follows : “June 25th, 1895. Mr. Judge Beach. Please pay the .boy five dollars $5 dollars, oblige me. E. F. Tharpe, June 25, 1895.”

The State offered evidence tending to show that defendant uttered the instrument in June, 1895, and that the same was a forgery, and also proved by one, Aaron Holmes, that he, witness, knew the handwriting of the defendant, and that the order or instrument alleged to have been forged, and which had been offered in evidence, was in the handwriting of the defendant.

There was evidence by the defendant denying the forgery and also the uttering of the forged instrument. One, E. J. Godfrey, was sworn and examined as a witness on behalf of the defendant. This witness testified that he “knew the defendant, knew defendant’s handwriting in June, 1895, or the year 1895,” “and saw same frequently; ’ ’ and further testifying the witness said: “I have seen defendant’s handwriting, and knew the .same in the year 1895, but can not say that I .know the same now as his handwriting might have improved. Would not say I know his handwriting now.” The defendant then asked this witness if the instrument or order introduced in evidence by the State was in the defendant’s handwriting, and on the State’s objection, the court refused to permit the witness to answer the question, to which ruling the defendant excepted. It is evident from the statement of this witness that he meant that he knew and was familiar with the handwriting of the defendant as he wrote in the year 1895, but could not say that he would know the defendant’s handwriting, such as he might write now, that is at the time of the trial, as witness explains that defendant may have “improved” in his handwriting since 1895. The pertinent inquiry was a knowledge of and familiarity with the handwriting of defendant in 1895, that being the time the alleged forged paper was said and purported to have been written. The State having offered evidence to prove that the paper was in the handwriting of the defendant, it was clearly the right of the defendant to introduce evidence in rebuttal of this, notwithstanding he might have been convicted under the indictment for uttering the paper, though he did not forge it. The court was in error in not allowing the witness to answer the question.

There is nothing in the exception to the admission of testimony of the witness Aaron Holmes, as to what counsel contends was a confession by the defendant and not shown to have been voluntary. What the defendant said to the witness about the order, was before he, defendant, ever presented the same, and only stated that he had an order for five dollars and would go to town next day and trade it out. This was not a confession such as is required by law to be shown to have been voluntarily made before being admissible — there was no charge at the time against the defendant for any crime or offense, £nd nothing that would raise the presumption of duress or compulsion.

The objection to the introduction of the order on the ground that it was' too indefinite as to the payee, was without merit. It was no more indefinite than if it had been payable to bearer.

The first, second, third and fourth charges are more or less involved and calculated to confuse and mislead, and were properly refused.

The 5th charge requested by the defendant should have been given. An instruction to the jury in the precise language of this charge has been several times decided by this court to be proper.—Prince v. State, 100 Ala. 145; Bones v. State, 117 Ala. 138. See also Bain v. State, 74 Ala. 38; Croft v. State, 95 Ala. 3; Whitaker v. State, 106 Ala. 30.

The 6th charge is the general charge, and this we need not discuss, as the bill of exceptions does not purport to set out ail of the evidence had on the trial.

For the errors pointed out, the judgment of the circuit court is reversed and the cause remanded. The defendant will remain in custody until discharged by due course of law.