Kirby v. State , 17 Ala. App. 151 ( 1919 )

This is the second appeal in this case. Kirby v. State,16 Ala. App. 467, 79 So. 141.

The same questions presented by this appeal were presented and discussed upon the former appeal, and an affirmance of the judgment here might well be rested upon the authority of the former appeal.

Telephone conversations, especially when had in reference to the transactions being investigated, are admissible in evidence, their probative force being a matter for the jury's determination.

Here, the conversation detailed was by Stokes with an unknown party, about the very checks charged to have been forged, and the witness did not attempt to say who the other party was. There was no error in the ruling of the court in this connection. Alabama Livery Co. v. Hairston, ante, p. 17,81 So. 353; Kirby v. State, supra.

The court was careful to require proof of the corpus delicti, and that the confessions of the defendant were voluntary, before admitting the confessions.

So, also, the court required the state to elect to prosecute for a particular offense, the forgery of the $10 check, and the witness Allen testified that he did not sign this check, or authorize any one to do so for him. His testimony as to the other seven checks was the same as to the $10 check, and before the court permitted the introduction of the seven checks, he was careful to explicitly instruct the jury that they could consider them only for the purpose of determining the intent with which the act charged was committed, if they believed from all the evidence beyond a reasonable doubt that the act charged was committed. The court reiterated and stressed this in his oral charge. No error was committed in admitting the seven checks, other than the $10 check, in evidence. Kirby v. State, supra, and authorities therein cited.

The special written charge requested and refused (charge 1a) was elliptical and involved, and was also argumentative. There was no error in the refusal to give this charge.

No error appearing, the judgment of conviction in the circuit court is affirmed.

Affirmed.