[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 409 The appellant was convicted of forgery in the second degree. The indictment follows the form laid down for forgery in the second degree in so far as that form covers section 6910, Code 1907, except that it contains the following additional words, "and the grand jury further charge that said alteration, forgery or counterfeiting consisted in signing the name of J.R. Upshaw where the same appears on the face of said instrument." Form 62, p. 670, Code 1907. There is no form in the Code for the latter part of section 6910, for uttering and publishing as true a forged check as set out in the indictment, and in drawing this part of the indictment the form for forgery in the first degree (Form 61, p. 670, Code 1907) was followed. It was not necessary to specifically aver in the indictment that the forgery consisted in signing the name of J.R. Upshaw to the check. Unnecessary averments in an indictment do not impair its validity. The most that can result from them is to hold the prosecution to proof of them. Aaron v. State, 39 Ala. 75; Johnson v. State, 35 Ala. 363.
Section 7132, Code 1907, provides:
"The manner of stating the act constituting the offense as set forth in the forms given in article 7 of this chapter is sufficient in all cases in which the forms there given are applicable; in other cases forms may be used as near similar as the nature of the case and the rules prescribed in this chapter will permit."
When the Legislature declares what form of indictment is sufficient, such legislative direction is controlling, and an indictment pursuing such form is sufficient. Bailey v. State,99 Ala. 143, 13 So. 566; Smith v. State, 63 Ala. 55; Wilson v. State, 61 Ala. 151. Indictments in the form prescribed by the Code are sufficient. 1 Mayf. Dig. § 11, p. 422. Analogous forms may be used. Brantley v. State, 91 Ala. 47, 8 So. 816; Harvey v. State, 15 Ala. App. 311, 73 So. 200.
Offenses of the same character, subject to the same punishment, may in the same count of an indictment be charged in the alternative. Section 7151, Code 1907. Under this statute a defendant may be charged with forgery and uttering a forged check in the same count. Johnson v. State, 35 Ala. 370. An indictment substantially the same as in the instant case was held good in Jennings v. State, 17 Ala. App. 640, 88 So. 187, and in Davis v. State, 165 Ala. 93, 51 So. 239. That the check set out in the indictment is not a true copy of the one alleged to have been forged, because the forged check had the word "insured" indented upon it with a protectograph, and had underneath the blank space for signature of the drawer the words "4 per cent. on savings" and had on the back thereof "W.M. Arnold," and that such words were omitted from the indictment was not good ground of demurrer.
The demurrer to the indictment was properly overruled. Numerous exceptions were reserved to rulings of the court on the admission of evidence offered by the state. In many instances no motion was made to *Page 411 exclude the answer, hence, in those cases, no question is presented for review. Rector v. State, 11 Ala. App. 333,66 So. 857; Johnson v. State, 4 Ala. App. 62, 58 So. 754.
It was competent for the state on cross-examination to ask defendant, who testified in his own behalf, as to his conviction for crime, for the purpose of affecting his credibility as a witness. Section 4009, Code 1907; Wells v. State, 131 Ala. 48,31 So. 572.
We have carefully examined and considered the evidence and the exceptions reserved by the defendant, and find no merit in the exceptions.
There was a conflict in the evidence, and it was sufficient to justify a conviction by the jury if they believed therefrom beyond a reasonable doubt that the defendant was guilty. The motion of defendant to exclude the evidence and direct a verdict for the defendant was properly overruled. Hargrove v. State,147 Ala. 97, 41 So. 972, 119 Am. St. Rep. 60, 10 Ann. Cas. 1126; Barber v. State, 151 Ala. 56, 43 So. 808.
It was improper argument to the jury for the state's solicitor to comment upon the failure of the defendant to bring one Pennington into court to testify in his behalf. Objection was made and overruled by the court, and exception taken. But in the absence of a motion to exclude the statement, no question is here presented for review. The function of a court of review is to determine the correctness of the action of the trial court. Sharpe v. State, 193 Ala. 22, 69 So. 122; Lambert v. State,208 Ala. 42, 93 So. 708; Elliott v. State, 19 Ala. App. 263,97 So. 115.
Appellant insists that error was committed in the refusal of the trial court to give certain written charges requested by defendant. Refused charge 1 was the general affirmative charge for the defendant, and was properly refused. There was a conflict in the evidence and the evidence was sufficient to submit to the jury the question of the guilt vel non of the defendant.
Charges 2, 3, and 4 pretermit a conviction of defendant for having uttered and published as true the alleged forged check. Even though defendant did not forge the name of J.R. Upshaw to the check, he would nevertheless be guilty if he had, with intent to defraud, uttered and published as true the alleged forged check knowing that the same had been forged.
Charge 5 pretermits a conviction of defendant in the event the name of J.R. Upshaw was written by another at the instance of defendant. Charge 7 has been repeatedly condemned. Bell v. State,140 Ala. 57, 37 So. 281; Parham v. State, 147 Ala. 57, 42 So. 1. Charges 11, 12, and 13 were substantially covered by the oral charge of the court. Charge 16 is condemned in Parris v. State,18 Ala. App. 240, 90 So. 808; Amos v. State, 123 Ala. 50,26 So. 524. Charge 19 is not a correct statement of law. It pretermits the guilt of a party who commits a crime in conjunction with another. Charge 20 exacts too high a degree of proof. Yarbrough v. State, 105 Ala. 48, 16 So. 758. Charges 21 and 22 were substantially covered by the oral charge of the court.
After verdict was rendered defendant moved for a new trial. We cannot say that the overruling of defendant's motion for a new trial was error.
No error is found in the record and the judgment of the circuit court is affirmed.
Affirmed.
On Rehearing. It was prejudicial error for the trial court to overrule defendant's objection to that portion of the solicitor's argument commenting upon the failure of the defendant to produce as a witness in his behalf one Pennington, when the witness was within the jurisdiction of the court, and the evidence was equally accessible to the state and the defendant.
"A presiding judge is called on to perform a most delicate and responsible duty when required to interfere with the freedom of argument, which is the privilege of counsel. Much must be committed to his sound discretion as to the course and character of the debate which should be allowed on the trial of a case, whether civil or criminal. When, however, there occurs an unwarranted abuse of the privilege, it becomes the imperative duty of the judge to restrain and rebuke, and by positive and explicit instructions disabuse, as far as practicable, the minds of the jury of any prejudicial impression. If, on objection being made, he fails to do so, such failure will work a reversal of the judgment, if injustice to the accused is the probable result. Childress v. State, 86 Ala. 77, 5 So. 775."
It has been repeatedly declared by the Supreme Court and this court that no unfavorable inference may be drawn, and no unfavorable argument of counsel made, because of the absence of the testimony of a witness, where the evidence also shows such absent witness' evidence to be equally accessible to both parties. Coosa Portland Cement Co. v. Crankfield, 202 Ala. 369,80 So. 451; Jordan v. Austin, 161 Ala. 585, 50 So. 70; Hutcherson v. State, 165 Ala. 16, 50 So. 1027, 138 Am. St. Rep. 17; Forman v. State, 190 Ala. 22, 67 So. 583; Manley v. B.R.L. P. Co.,191 Ala. 531, 68 So. 60; Bates v. Morris, 101 Ala. 282, 13 So. 138; Haynes v. McRae, 101 Ala. 318, 13 So. 270; Crawford v. State,112 Ala. 1, 21 So. 214; Ethridge v. State, 124 Ala. 106, 27 So. 320; Mann v. State, 134 Ala. 1, 32 So. 704.
The court by overruling defendant's objection did not thereby give its approbation to the argument, but left the statement with *Page 412 the jury. Exception was reserved to the action of the court. This error was brought to the attention of the court in the defendant's motion for a new trial, and should have been corrected at that time. For the refusal of the court to grant the motion for a new trial, the judgment of conviction must be reversed.
The application for rehearing is granted; the judgment of affirmance is set aside; and the judgment of conviction is reversed, and the cause is remanded.