Summary
In Brown appellant had been convicted under an indictment charging him with forgery in the second degree of an instrument described as a county warrant, in which the evidence showed that the warrant itself was genuine, but there was evidence to show that defendant had forged the signature of one of the payees in an endorsement of the warrant.
Summary of this case from Brown v. StateOpinion
4 Div. 243.
March 19, 1942.
Thos. S. Lawson, Atty. Gen., and John W. Vardaman, Asst. Atty. Gen., for petitioner.
The indictment is in Code form. Code 1940, Tit. 15, § 259(64). It meets the statutory requirement as to statement of offense and is sufficient to protect defendant from double jeopardy. Code 1940, Tit. 15, § 230; Langford v. State, 45 Ala. 26. And it sufficiently informs defendant that he was charged with forging or uttering the warrant and endorsements or any material part thereof. Presnal v. State, 23 Ala. App. 578, 129 So. 480. An endorsement on the back of the warrant is included in the term "an instrument in writing", both the warrant and endorsement being set out. State v. Hearn, 115 Ohio St. 340, 154 N.E. 244; Cochran v. State, 115 Tex.Cr.R. 201, 30 S.W.2d 316, 322 (dissent); State v. Waterbury, 133 Iowa 135, 110 N.W. 328.
M. Sollie, of Ozark, and W. L. Lee and Alto V. Lee, III, both of Dothan, opposed.
The endorsement of an instrument is a different contract from the instrument itself. Scarbrough v. City Nat. Bank, 157 Ala. 577, 48 So. 62, 131 Am.St.Rep. 71; Jackson v. Lancaster, 213 Ala. 97, 104 So. 19. The indictment did not inform defendant that he was charged with forging the endorsement. Crow v. State, 28 Ala. App. 319, 183 So. 897; Agee v. State, 113 Ala. 52, 21 So. 207; Jennings v. State, 17 Ala. App. 640, 88 So. 187; McDaniel v. State, 20 Ala. App. 407, 102 So. 788. The words in the indictment, "and on the back thereof appears the following" etc., are no part of the crime charged. Gilmore v. State, 99 Ala. 154, 13 So. 536; Shore v. State, 25 Ala. App. 351, 146 So. 537. An endorsement on a bill or note is no part of the instrument and need not be set out in an indictment alleging forgery thereof. 23 Am.Jur. 697; 2 Wharton's Crim. Law, 11th Ed., 1159; 1 Wharton, 10th Ed., § 686. To convict one of forging an endorsement on an instrument otherwise genuine, the indictment must charge the particular act complained of — forging an endorsement. 9 Am.Dig., First Decennial, Forgery, p. 1214, 34(5); 26 C.J. 844, 955; 3 Bishop's New Crim.Prac. 1472, § 410; Cochran v. State, 115 Tex.Cr.R. 201, 30 S.W.2d 316.
The State contends that when a forgery of an instrument is charged in an indictment as a warrant on the county treasurer signed by the probate judge and indorsed by two named persons, or the utterance of such instrument, a conviction can be sustained though the warrant was genuine, if defendant merely forged the names of the indorsers or uttered it with knowledge that their names had been forged.
But if the instrument as a whole, including the indorsements, is alleged to have been forged, some authorities hold that the indictment is sustained on proof that it was the indorsements only which were forgeries, when the initial instrument is genuine in all respects. State v. Hearn, 115 Ohio St. 340, 154 N.E. 244; Saucier v. State, 102 Miss. 647, 59 So. 858, Ann.Cas. 1915A, 1044; State v. Waterbury, 133 Iowa 135, 110 N.W. 328; Akin v. State, 86 Fla. 564, 98 So. 609.
But there are very respectable authorities which hold that the indictment should specify the indorsement, if that is the claim, when the instrument itself is genuine. Cochran v. State, 115 Tex.Cr.R. 201, 30 S.W.2d 316; see other authorities cited by the Court of Appeals.
But our statute, Title 14, section 200, Code of 1940, defines forgery in the second degree, in part, as the forgery of a bond, bill — single, bill of exchange, promissory note, or any indorsement thereof, and in the statute the utterance of a forged indorsement is specially mentioned. The statutes quoted in the cases relied on by the State do not specify as a separate offense the forgery of an indorsement on such an instrument. Everyone admits that the indorsement itself is a separate contract and is the subject of forgery, but it is said in those authorities that it is not so distinct and independent as not to be embraced in the charge of forgery of the instrument as a whole, setting it out as thus indorsed.
While the indorsement is not independent, it is a separate and distinct and different contract from any other feature of the instrument. Our statute emphasizes that distinction and that the forgery of an instrument is a different offense from the forgery of an indorsement of it. Under our statute, section 200, supra, a person who is sought to be convicted for forging an indorsement should be apprised of the fact that it is the indorsement which is involved and not the instrument which is indorsed.
We prefer to predicate our conclusion on the language of the statute, and the proper deduction to be drawn from it. Otherwise the authorities seem to be confusing.
Writ denied.
THOMAS, BOULDIN, BROWN, and LIVINGSTON, JJ., concur.
GARDNER, C. J., dissents.