Opinion
2 Div. 439.
February 24, 1931. Rehearing Denied May 5, 1931.
Appeal from Circuit Court, Perry County; Thos. E. Knight, Judge.
Ed, alias W. E., alias W. Ed, Curb was convicted of forgery in the second degree, and he appeals.
Affirmed.
Certiorari denied by Supreme Court in Curb v. State, 223 Ala. 130, 134 So. 819.
Count 3 of the indictment, under which defendant was convicted, is in substance as follows:
"The Grand Jury of said County further charge that, before the finding of this indictment, Ed Curb, alias W. E. Curb, alias W. Ed Curb, whose name is to the Grand Jury otherwise unknown, with intent to injure or defraud, did falsely make, alter, forge, or counterfeit a certain instrument in writing in words and figures substantially as follows: * * *
"And, in furtherance of his said intent to injure or defraud by the false making, altering, forging, or counterfeiting of such instrument in writing, he did cause to be made and attached to or added to the said instrument in writing certain certificates of acknowledgment, which certificates of acknowledgment were in words and figures as follows: * * *
"Which said certificates of acknowledgment were false, in that the acknowledgments mentioned therein were not made by Henry Price and Martha Price as recited in such certificates;
"Or, with intent to injure or defraud, did utter and publish as true the said falsely made, altered, forged, or counterfeited instrument in writing, together with the said certificates of acknowledgment thereto attached or added, knowing the same instrument in writing to be so falsely made, altered, forged, or counterfeited. Against the peace and dignity of the State of Alabama."
The indictment sets forth the instrument, in form a mortgage upon lands, to secure an indebtedness due by Henry Price and wife, Martha Price, to W. E. Curb; the testamentary clause being as follows:
"In witness whereof, the said parties of the first part have hereunto set their hand and seal this the date aforesaid.
his
"Henry X Price [L. S.]
mark
her
"Martha X Price [L. S.]
mark
"Witness __________"
The indictment further sets forth two acknowledgments of the execution of the conveyance purporting to have been made jointly by the mortgagors, and separately by the wife, before "Bettie Curb, Notary Public."
The demurrer takes these, among other, objections:
"4. The said indictment shows upon its face that the alleged forged instrument was signed by marks and that the names were not witnessed by a person who wrote his or her name as a witness."
"6. The said indictment shows upon its face that the alleged forged instrument is of no apparent legal efficacy without the certificate of the notary, and the said indictment fails to allege that the certificate of notary to said instrument was forged."
"9. The said indictment, and each count thereof, attempts to deny the certificate of the notary, which was a judicial act, without averring that said certificate was forged or that a conspiracy existed between the defendant and the notary to forge the said paper or the certificate thereof."
"12. The said indictment shows upon its face that the signatures of Henry Price and Martha Price are not the signatures of Henry Price and Martha Price as provided by section 1 of the 1923 Code of the State of Alabama."
A. M. Pitts, of Selma, and A. W. Stewart, of Marion, for appellant.
To authorize an indictment for forgery the instrument must either appear on its face or be in fact one which, if true, would possess some legal validity or be legally capable of effecting a fraud. Dixon v. State, 81 Ala. 61, 1 So. 69; Lessley v. State, 18 Ala. App. 657, 94 So. 262; Modern Macabees v. Gillespie, 14 Ala. App. 493, 71 So. 67. In executing a conveyance, if the person cannot write, his signature by mark must be attested by two witnesses. Code 1923, §§ 1, 6838. Without the acknowledgment, the instrument is not one capable of effecting fraud, since there is no signature. Where one acknowledges a deed purporting to have been executed by him, it is a sufficient adoption of his signature as his own, though it be not such in fact. McClendon v. Equitable Mortgage Co., 122 Ala. 384, 25 So. 30. The certificates of a notary are conclusive of the facts and acts recited therein, if she had jurisdiction; there being no fraud or duress. McKenzie v. Hixon, 201 Ala. 413, 78 So. 791. The certificate of the officer is not, of course, conclusive as to the identity of the person or the execution of the conveyance. Qualls v. Qualls, 196 Ala. 524, 72 So. 76. The taking of an acknowledgment is a judicial act. Byrd v. Bailey, 169 Ala. 452, 53 So. 773; Orendorff v. Suit, 167 Ala. 563, 52 So. 744.
Charlie C. McCall, Atty. Gen., and Merwin T. Koonce, Asst. Atty. Gen., for the State.
The indictment is not demurrable. Code 1923, §§ 4121, 4556 (62), 6840; Black v. State, 21 Ala. App. 94, 105 So. 703; Hall v. State, 21 Ala. App. 476, 109 So. 847; Rice v. State, 22 Ala. App. 531, 117 So. 502; Smith v. State, 22 Ala. App. 590, 118 So. 594. The notary did not have jurisdiction of the grantor unless she signed or authorized her name to be signed to the mortgage and also made an acknowledgment in some form. Qualls v. Qualls, 196 Ala. 524, 72 So. 76.
Appellant was convicted of the offense of forgery in the second degree. Code 1923, § 4121.
The indictment substantially followed the form prescribed by the Code, and was sufficient as against the demurrers interposed. Code 1923, § 4556, subsec. 62; Code 1923, § 4527.
The instrument alleged to have been forged, though a "conveyance for the alienation of lands," etc., and purporting to be signed only by "mark" by the grantors therein, without attesting witnesses (Code 1923, § 6838), was yet, because it bore, affixed, the "acknowledgments" of the said grantors, in accordance with the forms, and in the manner, prescribed by Code 1923, § 6845, of such potential, or apparent, efficacy, as to be sufficient, as against demurrer, upon which to predicate a charge of forgery. Code 1923, § 6840.
Appellant's able counsel have filed, here, two very elaborate briefs in his behalf. But, as a matter of fact, we find but few questions raised — really none that we deem worthy of extended comment.
The burden of the argument made for a reversal of the judgment of conviction is, mainly, that the court erred in refusing to give at appellant's request the general affirmative charge in his favor, or, at any rate, in overruling his motion for a new trial.
We are of the opinion, and hold, however, that the court properly overruled appellant's motion for a new trial, and hence, perforce, did not err in refusing to give said general affirmative charge. It would add nothing of value to our opinion to discuss the evidence. That for the state was manifestly, and abundantly, sufficient to support the verdict; that for appellant tended to deny or refute it. Clearly, the issues were for the jury, and, as the learned trial judge so well stated, there were not so many questions of law involved in the case — practically the whole question being, Did or not appellant do what he was charged with doing?
We do not find that any undue restrictions were thrown about him in the matter of making his defense or that any undue advantage was taken of him in the matter of presenting the state's theory.
The few exceptions reserved on the taking of testimony have each been examined. None of them present any new or novel question of law. And in none of the rulings underlying same do we find prejudicial error.
The trial court's oral charge, in connection with the several written charges given at appellant's request, fully covered the law of the case.
We have critically inspected the several written charges requested by, and refused to, appellant. The substance of each of same, if not confusing, incorrect, inapplicable, or otherwise correctly rejected, we find to be fully covered in other charges given.
There appears nowhere prejudicial error, and the judgment of conviction is affirmed.
Affirmed.