Christison v. State

On Rehearing

Considering our treatment 'of the Hallmark check as having the operative effect of a receipt, we must admit that ,for the check to be a receipt which purports to be the -act of another, the endorsement must be regarded. But we do not think- a forgery need to have been made of the. endorsement. For example, a genuinely.endorsed check could be forged on' it£ fade to change the amount or the date or the- purpose for which it is given, and forgery-.of the face, if material to the instrument as a receipt, would, in our opinion, constitute-an instance of second degree forgery. ■ ■■■'■

We are requested, inter alia, to extend the opinion in order to make a “full statement of the evidence and of the facts” showing Miss Christison’s pleas. . of autrefois acquit and the proceedings and rulings thereon.

The defendant’s plea 3 reads:

“Comes the defendant in her own proper person, and for plea to the Indictment and to each Count thereof, separately and severally says:

“She aught not tó be required to answer this Indictment and that the State aught not to prosecute the same against. her, because at the regular session of the Circuit Court of Etowah County, Alabama, on, to-wit: the 9th day of December, 1957, she was charged and put upon trial under an Indictment charging.”

[Count 1 of the former indictment is similar to count 1 herein, but describes, a check of August 9, 1951, on “Veterans Training Fund” of the School Board pay- . able to the order of Louis Kirkland for $250.]

[Count 2 of the quoted indictment is set forth verbatim in the text of our reqúest submitting the certified question to the Supreme Court, 273 Ala. 1 , 142 So.2d 663 .]

[Count 3 of the. indictment referred to and quoted in defendant’s plea 3 is in *200 similar terms to count 3 of the instant indictment, except that it refers to a check in the amount of $250 payable to Louis Kirkland instead of Clorene C. Hallmark.]

Plea 3 then continues:

“And that after trial, hearing and consideration as to said offense, the defendant was acquitted and discharged. And the defendant says that she is now charged in this Indictment of this offense, which is based upon the same matter and transactions as that for which she was tried and acquitted as aforesaid in the first Indictment. All of which the defendant is ready to verify, and prays that she be discharged in the present Indictment.

Plelen Christison Defendant

“Sworn to and subscribed before me on this 8 day of April, 1959.

George A. Murphy Notary Public “Filed 4/8/59”

Plea 4 contains the same text as plea 3, except that it refers to a single count identical to count 2 set forth in the certified question, supra.

Pleas 6 and 7 are substantially the same as plea 4.

Upon the issues made up by these pleas, the defendant first introduced in evidence the indictment in case No. 4354 containing three counts relating to the Louis Kirkland check of August 9, 1951, in the amount of $250.

The defendant then called as a witness the Circuit Clerk, Hon. Howard Kirby, who identified the trial docket sheet in case No. 4354, the final order on which was “jury and verdict of not guilty,”, December 12, 1957, with a notation to Minute Book Vol. W, p. 502. Thereupon, a portion of the Minute Book referred to was received in evidence upon identification by Mr. Kirby.

This minute entry is clearly written up in proper form to show Miss Christison discharged from a prosecution on an indictment in Circuit; Court case No. 4354. Then the defendant tendered in evidence the indictment in the instant case concerning the Hallmark check.

The defense offered paragraph 1 of a stipulation. Whereupon, the solicitor proceeded to offer the entire agreement. This agreement reads:

“It is agreed by and between the State of Alabama, acting by and through the Solicitor, and the defendant, acting by and through her attorneys, that for the purpose of submitting to the Jury the question of former jeopardy or former acquittal of the defendant by virtue of an acquittal in a previous trial in Case No. 4354, as follows :

“1. That on, to-wit, December 9, 1957, the defendant was placed on trial in Case No. 4354, and on December 12, 1957, the Jury returned a verdict of not guilty. That the case was submitted to the Jury on all three counts contained in the Indictment.

“2. That on the trial of said case, the Court permitted only the check specifically referred to in Counts One and Three of the Indictment to be offered in evidence, in proof and support of the offense or offenses charged, and that numerous other checks which were introduced in evidence, including the check on which the defendant is charged in the present Indictment, were introduced in evidence, but were limited by the Court to the purpose of showing guilty knowledge or intent, or a system or pattern, and that in its oral charge to the Jury in said former trial, the Court charged the Jury that all of the checks introduced, other than the one set out in the Indictment, were to be considered by the Jury only for the purpose of showing guilty knowledge, intent, or a system or pattern, and that the defendant was only being tried on the check set out in the Indictment.”

*201 Paragraph 2 was received over the defense objection; first, under the general grounds of incompetent, etc., and, second, that the facts, testimony, charges to the jury in the former case are immaterial and irrelevant with respect to the issue of former acquittal. The court overruled this objection. We see no prejudice to any substantial right of the defendant in this ruling with respect to the admissibility of paragraph 2, particularly in view of the wording of the agreement. The defendant having introduced part of the document, the State was within its rights in introducing the rest of it.

The court charged the jury affirmatively as we have heretofore indicated on original deliverance.

The appellant has also requested that we set forth “a full statement of the evidence and the facts” showing that the endorsement on the check charged in the indictment was not received by the trial court in support of the charge of the indictment, but for the limited purpose of proving motive, intent, etc. We have searched the record, and, though we are not infallible, we consider that the Plallmark check was received in evidence without limitation.

Page 61 of the record shows that when the solicitor offered the check (State’s Exhibit No. A) in evidence, defendant objected on the following grounds: (1) First, “incompetent,” etc.; (2) it was not shown at that time that it was “a forged check or that anything is wrong with this check and * * * from aught that appears it is entirely a separate and distinct writing”; (3) the check was a material variance between allegata and probata; (4) objection to offering anything other than the face of the check, for that anything appearing on the reverse is not material to the issue; and (5) a claim of variance because of the check showing matter not set forth in the indictment, such as “Correction O. K., H. A. C.,” and the perforation made by the bank, “Paid 1-5-51 61-66.”

The trial judge overruled the objection; defense counsel asked if the entire check, the front and back, “is being received in evidence.” The solicitor replied, “That is the way we offered it.” The court said, “Yes.” The check was then received in evidence.

On page 230 of the record, we find that after the State rested its case in chief, the court made the following statement:

“Gentlemen, there were some objections interposed to the introducing of the endorsement on the hack of several exhibits with reference to Count One and I told you I would give you a ruling on that. Gentlemen of the jury, I will instruct you this way. I will — first, let me for the record — as to Count One, I will sustain that part of the objection and limit the introduction of the endorsement top Count Three. And now I will try to clarify it to the jury. Gentlemen of the jury, we are trying an indictment here in two counts, which are alleged charges of separate offenses. One count charges forgery and another count charges embezzlement. So when the instrument was offered, it goes to you — the entire instrument — the endorsement as to the embezzlement count. Some of those endorsements were offered under the limitations that I told you about on Exhibit 5 and those endorsements still go to Count Three, but this Defendant is not charged with forging an endorsement, so far as the endorsement is concerned as to the forgery p count, I will limit that and exclude the endorsement as to the forgery count. And I will instruct you further on that when we get to the proper place.”

We are not advised of any page number in the record of some 350 pages wherein the endorsement on the Hallmark check was limited for its probative effect to showing motive, intent, etc. We consider the quoted provision from page 230 to refer to other checks and we consider the in *202 struction, insofar as it relates to the Hallmark check’s endorsement, to exclude the endorsement as to the forgery count, because the defendant was not charged with forging an endorsement. Considered with prior instructions quoted from page 61 of the record above, we believe that the endorsement went to the jury not for the purpose of showing forgery, but to show the entire instrument as described in count 1 of the indictment, the last words of the indictment’s description in count 1 being “endorsed Clorene C. Hallmark.”

We are further requested to set forth defendant’s plea 2 to the indictment which reá'cls as follows":

“Comes the defendant in her own proper person and for plea to Count One of the Indictment says:

“The State aught not further to prosecute this Indictment against her because, the alleged bank check, the subject matter of the Indictment, had at the time of the alleged alteration, forgery or counterfeiting been paid by the bank upon which it was drawn and marked ‘Paid’ by perforation and had no- legal validity as a bill of exchange or as a negotiable instrument or bank check. And this the defendant is ready to verify, and prays that she be discharged.

Helen Christison

Defendant

“Sworn to and subscribed before me on this 8 day of April, 1959

George A. Murphy

. . Notary Public

“George Murphy

Attorney for Defendant

“Filed 4/9/59”

Finally, in the refused written charges requested by the defendant, there appear in the record several which were affirmative separately as to each of counts 1 and 3 of the 'indictment upon which the defendant was tried.

We have carefully considered the argument in application for rehearing and consider that the evidence amply supports the verdict on count 3 and also as to count 1 when the Hallmark check is considered in the light of its performing the office of a receipt used in the vouchers of Miss Christi-son to account for her disbursement of public school funds. Accordingly, the application for rehearing is overruled.

Application overruled.