Burden v. State , 120 Ala. 388 ( 1898 )

McCLELLAN, C. J.

It may be that a writing in the following words, viz : “Mr. Holmes ; Selma, Ala. Dear Sir: The value of this chain is $10.00 (Ten).” Is the subject of forgery under certain circumstances extrinsic to the paper itself — even this we do not decide, however — but it is most clear that on its face this writing, by whomsoever signed or purporting to be signed, does not create, discharge, increase or diminish a money liability, or-transfer or incumber property, or release or impair an existing claim to, or lien upon property; and if extrinsic facts exist which taken in connection with the paper impart to it a capacity to injure .or defraud, they should have been averred in the indictment. No such facts are alleged in this indictment, and, therefore, neither of its counts charge any offense.—Rembert v. State, 53 Ala. 467; Dixon v. State, 81 Ala. 61; Williams v. State, 90 Ala. 649.

The construction put upon the words “or any instrument or writing, being or purporting to be the act of another, ” in section 4720 of the Code, would lead to this, that if a man signed the name of another to a statement that the earth is round, or that the moon' is made of green cheese, or other like entirely innocuous assertion, by means of which there is no possibility of any person being injured or defrauded, he would be guilty of forgery. The statute is not open to such interpretation, we think ; and we reiterate with respect to the present form of the provision what has been many times declared by this court: A writing to be the subject of forgery must either upon its face or by reason of attendant circumstances have, upon the assumption of its genuineness, a capacity to injure or defraud.

The trial court erred in overruling the demurrer to the indictment. For this the judgment of conviction will be reversed and the cause will be remanded.

Reversed and remanded.