# Irvin v. State > Alabama Court of Appeals · October 10, 1967 · 44 Ala. App. 101 URL: https://www.frixlaw.com/law-library/cases/9673728 ## Case - **Full name:** Melvin H. IRVIN v. STATE - **Court:** Alabama Court of Appeals - **Decided:** October 10, 1967 - **Citations:** 44 Ala. App. 101; 203 So. 2d 283; 1967 Ala. App. LEXIS 432 - **Precedential status:** Published - **Opinion:** Dissent by Johnson - **Judges:** Cates, Johnson - **Cited by:** 20 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9673728 ## Opinion text JOHNSON, Judge (dissenting): The State’s first witness, Mr. John C. Hodges, testified that he had been Assistant Manager of the A. & P. Co., Store No. 120, located in Morgan County, Alabama for about five years; that he knew appellant; that on January 27, 1965 between 11:00 and 12:00 A.M., appellant in his presence wrote a check for $100.00 at the desk below the office window; that he (the witness) “took the check from him”; and gave appellant $100.00 in cash therefor. Mr. Hodges had initialed appellant’s check, stamped the check and actually gave appellant the money, thereby presenting, on its face, sufficient implication to appellant that Mr. Hodges had the authority to act for and on behalf of the A. & P. Co. I do not agree with the majority opinion that there is a fatal variance in this case. In Clonts, supra, the variance occurred when the indictment alleged ownership of goods obtained by false pretense was in an individual but proof thereof produced at the trial showed ownership in a corporation. In the case before us for review, the indictment charged appellant with defrauding “John C. Hodges DBA A. & P. Tea Co.” and in my opinion the proof (page 71 of the record) conformed therewith. *110 Hodges identified the check, State’s Exhibit No. 1, as the one given to him by appellant and testified that it was in the same condition it was when it was given to him and that nothing had been added to it. Appellant contends that it was error for the trial court not to provide him with counsel after his application as an indigent. The record, though reflecting appellant’s request for court appointed counsel on January 4, 1966, and on August 3, 1966, also reflects a plea in abatement filed on March 30, 1965; a motion to strike the affidavit filed on August 3, 1966; a motion to quash the affidavit filed on August 3, 1966; and a demurrer filed on August 8, 1966 — all of which were filed by appellant in his own behalf. The record also reflects the following quotation at the time the above motions were denied: “It is noted by the court that prior to commencement of trial and court’s ruling on pleadings that defendant advised court that he is a graduate attorney.” At the beginning of the trial, out of the presence of- the jury, the court, addressing appellant, stated as follows: “The Court has discussed with the defendant on other occasions and been advised by the defendant that he is a graduate attorney himself although the court is advised that he is not licensed to practice but he is a graduate attorney.” • During-'the course of the trial, the court addressed the following to the jury: “THE COURT: Mr. Irvin. I might state for the record that Mr. Irvin is an attorney, a graduate — is it Tennessee, Mr. Irvin? “MR. IRVIN: Yes, sir. “THE COURT: But he is not a practicing attorney in this community but the court' feels he is competent to try his own case and he represents himself here without benefit of counsel.” The appellant also alleges in his “Rebuttal Brief and Argument” that he holds “an L.L.B. Degree from the University of Tennessee College of Law”. The trial court ruled that appellant was, therefore, competent to defend himself, and this court contends that appellant’s claim of error, that the trial court erred in not appointing him a counsel, has no merit. Judicial notice is taken that on two-prior occasions appellant has had cases on the docket of this court in which he defended himself, page 296, Docket No. 56, 8 Div. 12 , and 8 Div. 14 . The conclusion that may logically be drawn from this fact is that appellant had displayed knowledge and ability in conducting defenses of himself in actions prior to the one at bar. On several occasions during the course of the trial, appellant alluded to his inexperience in Alabama trial procedure. However, at the beginning of the trial, the prosecutor stated in the record that he had aided appellant during a recess; the appellant during the course of the trial asked the court for assistance, which was done off the record, with the notation in the record, “Thereupon, there was an off the record discussion of the Bench, after which the following proceedings were had before the Court and the Jury.” During the trial the court took another recess to explain to appellant Alabama procedure relating to his attempts to introduce into evidence the question of his (appellant’s) sanity, also off the record. The court further stated that at the end of the trial it would “put anything in the record that we want to, out of the presence of the jury”. From the foregoing, it may be concluded that appellant not only had assistance from the court, but was actively aided during the course of his defense by the court, thus enabling him to present an adequate defense in his own behalf. *111 The record reflects that appellant’s educational background was as follows: attended college at Boaz for two years; attended West Point “for a short time”; graduated from the University of Tennessee Law School in 1959; taught briefly at Athens College; and it is noted that he was valedictorian of his senior class in high school. New individuals have ever •manifested an educational training so broad .and versatile. It might, however, appear that appellant possessed training in “penmanship” and the criminal art of fraud and deception by the execution of negotiable instruments. As a part of the evidence reflecting the fraudulent intent of this appellant, I point to the fact that the evidence shows that he bad on former occasions employed the same modus operandi in that he had drawn two •other checks, each of which bore two different dates, one in the lower lefthand ■corner marked “issued” and the other in the upper righthand corner. It is my opinion that it was the intention and desire of the appellant in employing the unexplained •use of the two dates, to distort, confuse, and flim-flam the real truth regarding the time of issuance, and further, the use of both dates impresses me as being a part and ^parcel of a ruse or diabolical scheme to •defraud and at the same time create in advance a technical defense thereof in the event of prosecution, at which time he would contend that said check was only a future civil promise to pay. By “issue” Code of Alabama, 1940, Tit. 39, Sec. 2, means “the first delivery of the instrument, complete in form, to a person who takes it as a holder.” Since the evidence in the case shows that the check was actually “issued 1 — 27— 65” and the dates thereon are in variance, I am of the opinion, because of the use of the word “issued”, that the check was lawfully dated and the date thereon “1-28-65” is to be treated as surplusage. The true date was placed in the lefthand cornier and I know of no law which makes a check invalid because of the location of the date. I consider this check to be properly and validly dated. Appellant’s contention that this was a “promise to pay” was not communicated 'to the representative of the A. & P. Co. in such a manner as to preclude difficulties and confusion. To the unexperienced, this “check” must have been, indeed, ambiguous. The Code of Alabama, 1940, Tit. 39, Sec. 21, states in part as follows: “Where the language of the instrument is ambiguous, or there are omissions therein, the following rules of construction apply: “(3) Where the instrument is not dated, it will be considered to be dated as of the time it was issued. “(5) Where the instrument is so ambiguous that there is doubt whether it is a bill or note, the holder may treat it as either, at his election.” I observe from reading appellant’s brief that it is his desire to be held blameless in this crime because the Board of Commissioners has ruled that he “can make application to stand the Alabama Bar next year” contingent on “good character, and improved mental and physical health”. His obvious scheming, fraudulent and nefarious tactics as manifested by the evidence in this case rather indicate that he seeks a privilege or license for the practice of skullduggery, rather than a license for the practice of the time honored profession of the law. Defendant’s Exhibit B was a. check issued to “Fuller’s” bearing the dates 1-26-65 in the upper righthand corner and “issued 1-23-65” in the lower lefthand corner. It was not error for the State to use this check in evidence to show intent. “Testimony, in trial for giving worthless check, that defendant gave numerous other worthless checks at about same time, held admissible to show accused’s *112 intent at time of giving check.” Nix v. State, 27 Ala.App. 94 , 166 So. 716 . “It has been many times held that proof of similar transactions occurring about the time of the alleged crime are admissible as tending to prove intent. * * * [I]t was not error to overrule the objections to the various questions tending to prove that about the time as charged in this indictment defendant gave to other parties worthless checks in the buying of other cotton.” Caughlan v. State, 22 Ala.App. 220 , 114 So. 280, 283 . Appellant contends that his giving of postdated checks was an “idiosyncrasy”. During the course of direct examination by the appellant of Robert Irvin, his brother, in explanation of the reasoning behind certain questions, appellant stated the following : • “Your honor, I am trying to show that they have got two checks and I have got several other checks that’s postdated that have been paid and that that is an idiosyncrasy of the defendant to give his checks like that" (Emphasis ours.) Appellant then asked Robert Irvin the following: “I ask you, Robert, if the defendant has a peculiar habit that would indicate to you that he is different from the average person? * * * And that his peculiar habit is issuing postdated checks ? * * * * * * “A. Yes, sir, he gives many postdated checks.” Appellant, testifying in his own behalf, stated the following: “I have had this idiosyncrasy, habit of giving postdated checks.” Appellant’s other claims of error have no merit in my opinion. For the above stated reasons, I am of the opinion that no error meriting reversal has been presented. The question of guilt or innocence of the appellant was for the jury, and their verdict is not so palpably wrong or contrary to the weight of the evidence as to warrant reversal. It appears that the writer of the majority opinion has some appreciation of portions of appellant’s argument in that he has adopted for his use a prevailing adage of appellant dealing with “a fool” being the client of a lawyer who defends himself. But I do not think that an examination of the capable techniques employed by appellant, as indicated by the record, here reflects the truth of that old “proverb”. For the foregoing reasons, I must respectfully dissent from the majority opinion as I feel that this cause is due to be affirmed. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9673728. Public record. Not legal advice.