The Montgomery advertiser., 1903-09-08
REAL V. STATE.


 Indictment for forgery. Appeal rom
 the City Court of Anniston. Tried be-
 fore the Hon. Thomas W. Coleman, J.
 i, Forgery; admissibility of evidence On a trial under an indictment, charg- ing the defendant with having forged a mortgage which was given to a bank where the president of the bank testf- fled, as a witness. to the execution Of the alleged forged instrument, by the defendant. it is competent for the de- fendant to ask such witness, upon cross examination, as to whether or not. prior to the present prosecution. he did not ''prosecute defendant by swearing out a warrant against him for selling the mortgaged property-the same property mentioned in your mortgage?" involved in the present suit.
 ?. Same; same-On a trial under an indictment charging defendant with hav- ing forged a mortgage, where one of the attesting witnesses testified that he sign ed the mortgage, as a witness, and an- other witness testified that he saw the defendant sign 1t, the execution of the mortgage is sufficiently proved to au- thorize its submission in evidence; and where the mortgage inquired about Is not set out in the bill of exceptions, a ruling upon an injunction to the intro- duction Of such mortgage in evidence. upon the ground that there was a va riance between it and the one copied in the indictment will not be reviewed on appeal, the burden being on the party taking the appeal to affirmatively show error to his prejudice.
 8. Evidence; proof as to manner of copying paper-A record is proved not by the manner in which 1t was copied, but by the production and inspection of the original papers, or an exemplifed and authenticated copy; and. therefore | where a clerk in the office of the judge | of probate testifes as to his having re- corded a paper which was introduced ir l evidence, 1t is not competent to ask such clerk whether fin copying a paper or | the record. do you always undertake tc copy it as it is?''
 4. Trial and its incidents; right oi judge to ask witness question-In the | trial of case it is permissible. and is within the province of the court, for the court to ask a witness, who Is being ex' amined, such question as it may cen necessary to elicit relevant and material evidence without regard as to whether such evidence will be beneficial or pre-. judicial to the one party or the other
 5. Same; charge of court to jury-A trial court cannot be put in error for the refusal to give a charge requested by defendant, which is substantial repeti- ton of a charge previously given at the defendants request.
 6. Forgery; charge of court to jury On a trial under an indictment which charges the defendant with having forg- ed a mortgage, a charge requested by the defendant asserts a correct propo- sition of law and should be given which instructs the jury that if the defendant owned all of the property set out in the indictment at the time of making the mortgage, and 1t was the defendant s intention at that time that the property mentioned in the mortgage should be conveyed and held liable for the debt specified in the mortgage, then they should find the defendant not guilty"
 Reversed and remanded.
 Opinion by Haralson. J.