[Gooden v. The State.] defendant came into the said store, and offered to sell the writing above copied, which the witness identified, for ten dollars worth of goods; "saying that his name was John Smith, and that he lived near Oxford, Alabama, and had been working for Mr. Threet, about seven miles from Talladega, and that Mr. Threet had given him this paper on a settlement between them." The witness said, that he was satisfied the paper was a forgery, and, without telling the defendant his suspicions, he carried it into the adjoining store of R. A. McMillan, who pronounced it a forgery; that he left the paper with McMillan, and then carried the defendant into his store, telling him that McMillan would give him the money on it; and that McMillan said to the defendant, on his entrance, "This is a forgery, Dan. Thweatt never wrote it. McMillan was introduced as a witness for the State, and testified to the same facts as having occurred at said interview; and further, that the defendant "set up no claim to the note, except saying, on leaving the store, that he would have his note before he left town, but he never came back for it." The witness May testified, also, "that he did not know whether any persons named Bell Sims and Daniel Threet lived in said county, nor whether Daniel Threet wrote the said paper, nor whether the defendant wrote it;" and said McMillan also testified to the same effect. The State then introduced Daniel H. Thweatt as a witness, who testified, in substance, that he lived seven or eight miles from the town of Talladega; that the defendant had worked for him during the spring of 1876; that, on a settlement between them, he paid the defendant some money, and gave him an order on Myers & Co. in Talladega for the balance; also, that he did not write the paper above set out, and did not know who wrote it; that he always signed his name D. H. Thweatt; and that he did not "know any such person as Daniel Threet around here, though there may be such a person." The State's counsel then asked the witness, "Do not a great many people pronounce your name as if it were spelled Threet, instead of Thweatt?" The witness answered, "More people pronounce it that way than any other." To this question and answer, each, the prisoner objected, on the ground that it was illegal; and he reserved exceptions to the overruling of his objections. The State then offered the paper in evidence, and the defendant objected to its admission, "because it is illegal evidence; because it is not such a paper, promissory note, bond, bill single, or order for money, for the forgery or false making of which the law prescribes a penalty; and because there is no evidence that Daniel Threet, whose name is signed to it, did not write it." The court overruled [Gooden v. The State.] these objections, and admitted the paper; to which the defendant excepted. Several witnesses were introduced on the part of the defense, who had known the defendant intimately for a long time, and who testified that he could neither read nor write. "This being all the evidence in the case, the court thereupon charged the jury, among other things, that if the defendant either wrote the paper offered in evidence, or procured some other person to write it, not the person purporting to be the maker, and offered to sell it, he would be guilty of forgery in the second degree.' To this portion of the charge the defendant excepted, and asked the court to give the following written charge: Unless the jury believe from the evidence, beyond all reasonable doubt, that the defendant wrote the instrument alleged to have been forged, they must return a verdict of not guilty.' The court refused to give this charge, and the defendant excepted to its refusal." GEO. W. PARSONS, for the prisoner. JNO. W. A. SANFORD, Attorney-General, for the State. BRICKELL, C. J.-The intent to deceive and defraud, and the capacity of the false instrument to consummate this intent, are the material ingredients of the offense of forgery. An instrument bearing the name, as maker, by which a person is known and called, uttered in the vicinity of his residence, has the capacity of deceiving and defrauding those who recognize him by that name. There was no error in receiving the evidence that the witness Thweatt was known and called by the name of Threet, which was signed to the false instrument. The writing offered in evidence corresponded, in all essential respects, with that described in the first count of the indictment, and the objection to its introduction was properly overruled. 2. The charge requested was properly refused. The offense was complete, though the defendant did not write the instrument, if he procured another to write it, with the intent to publish and utter it, and did subsequently publish and utter it as genuine.-3 Green. Ev. § 104. 3-4. The charge given by the court cannot be supported. It withdraws from the jury all consideration of the intent to defraud-a matter of inference from the facts before them, which it was their province to draw or reject.-3 Green. Ev. $103. It also excludes from their inquiry and determination the place of the commission of the offense, whether it was committed in Talladega county, or elsewhere. The fact [Carter v. The State.] would probably have been inferred by the jury from the evidence; but the court could not exclude it from their inquiry, or assume it as proved.-Commonwealth v. Parmenter, 5 Pick. 279. It is well settled, by the decisions of this court, that a charge in a criminal case, which ignores a material fact, as a constituent of the prisoner's guilt, or asserts that certain facts, not sufficient to make a prima facie case, will authorize a conviction, is erroneous, compelling a reversal, though it appears other instructions were given.-Corbett v. State, 31 Ala. 329. For this error, the judgment must be reversed, and the cause remanded. The prisoner will remain in custody, until discharged by due course of law. ant, Carter v. The State. Indictment for Illegal Voting. 1. Sufficiency of indictment.-An indictment which alleges that the defend"not being of the age of twenty-one years, did unlawfully deposit his ballot, as his vote, at a general election held in said county on the third day of November, 1874, contrary to law," &c., is bad on demurrer: it should describe the election, or the purposes for which it was held, with that degree of certainty which will enable the court, on conviction, to pronounce the proper judgment. 2. Illegal voting; what constitutes offense; relevancy of evidence as to age of voter. A minor can not be convicted of illegal voting, if he honestly believed that he was twenty-one years of age when he voted (Gordon v. The State, 52 Ala. 308); hence, the fact that his father told him, before he voted, that he was twenty-one years old, is relevant and admissible evidence for him. FROM the Circuit Court of Talladega. Tried before the Hon. JOHN HENDERSON. The indictment in this case contained two counts; but a demurrer was sustained as to the first count, and the trial was had on the second count only, which alleged, that the defendant, Dennis Carter, alias Dennis Knox, "not being of the age of twenty-one years, did unlawfully deposit his ballot, as his vote, at a general election held in said county on the 3d day of November, 1874; contrary to law, and against the peace," &c. The defendant demurred to each count in the indictment, "on the ground that neither of them charged an offense known to the law.' The court sustained the demurrer as to the first count, and overruled it as to the second; and the defendant thereupon pleaded not guilty as to the 55 181 94 108 55 181 97 76 [Carter v. The State.] second count, and the trial was had on issue joined on that plea. On the trial, as the bill of exceptions shows, after the evidence for the prosecution was closed, the defendant introduced Harry Knox as a witness, who testified, that he was the defendant's father, and that on the "day of the general election in November, 1874," the defendant came to him, in the town of Talladega, and asked him if he was old enough to vote; and that he replied, after counting up the time, and consulting with Alfred Knox, that he was twenty-one years old. The defendant afterwards introduced said Alfred Knox as a witness, who testified that, on the occasion referred to, he heard the defendant ask his father if he was old enough to vote, and assisted his father in counting up the defendant's age, and heard his father tell him that he was old enough to vote. "The State objected to this evidence; the court sustained the objection, and excluded the evidence; to which the defendant excepted." The court charged the jury, that if the defendant "voted at said election, not being twenty-one years old at that time, he was guilty of a violation of the law, and should suffer the penalty thereof. The defendant excepted to this charge, and requested the court to instruct the jury, "that a criminal intent is a necessary ingredient of every indictable offense; and unless they find from the evidence, beyond a reasonable doubt, that the defendant willfully voted with intent to violate the law, they must find him not guilty." The court refused this charge, and the defendant excepted to its refusal. GEORGE W. PARSONS, for the defendant. JOHN W. A. SANFORD, Attorney-General, for the State. MANNING, J.-The trial of this cause was upon the second count in the indictment, charging "that before the finding of the indictment, Dennis Carter, alias Dennis Knox, not being of the age of twenty-one years, did unlawfully deposit his ballot, as his vote, at a general election held in said county on the 3d day of November, 1874, contrary to law," &c. This indictment does not show for what the election was held, at which it is alleged that defendant voted while under the age of twenty-one years. It was at a general election held in said county; but the election may have been one held at the suggestion of the county authorities, for the purpose of ascertaining the wishes of the people with respect to the building of a bridge, or the erection of a new court-house, [Sanders v. The State.] or of appointing a delegation to aid in procuring the passage of some act of the legislature in which much interest was taken. The indictment ought to have shown that the election (general or special) was one for county or State officers, or for what officers it was held, in order that the court might see, with that degree of certainty which would enable it on conviction to pronounce the proper judgment, what the offense charged really was. 2. The court erred in excluding what it was proposed to prove by the witness Alfred Knox. This evidence was offered to establish the fact that accused was informed by his father, before he voted, that he was twenty-one years old. The testimony was competent, though the jury were not bound to conclude from it that defendant really believed he was of that age. It was for them, from all the testimony, by a comparison of the various parts of it, and from the manner of the witnesses in testifying, and their relations with each other, and their character, to determine whether the conversation was had with a view to providing a defense in case of prosecution, or whether in good faith the defendant believed, when he cast his vote, that he was a qualified voter; for, if he honestly believed that he was old enough to vote, he is not liable to punishment for having voted.—Gordon v. State, 52 Ala. 308. For this reason, the court erred also in its charge to the jury, and its refusal to qualify it as asked to do for the defendant. The judgment must be reversed, and the cause remanded. Let the prisoner remain in custody, until discharged by due course of law. Sanders v. The State. Indictment for Maltreatment of County Convict. 1. Objections to indictment, on account of defects in grand jury. --An indictment not found by a legal grand jury, is void, and the objection to its validity may be raised at any time, even for the first time on error; but, if it was found by a legal grand jury, although the members thereof were not properly drawn or summoned, objection to it on that account can not be raised for the first time on error.-Rev. Code, §§ 4087, 4187-88. 2. Grand juries of Quarter Sessions Court of Perry.-It is not a valid objection to an indictment, found at a regular term of the Court of Quarter Sessions of Perry county (Session Acts 1875-6, p. 371), that the 9th section of the act establishing that court requires that, at the terms held at Uniontown, grand jurors shall be selected from resident citizens of that beat, possessing the stat |