Pratt v. State

• Decision Date: 30 June 1972
• Docket Number: 6 Div. 353
• Citation: 48 Ala.App. 341,264 So.2d 571
• Parties: Robert N. PRATT v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 571

264 So.2d 571

48 Ala.App. 341

Robert N. PRATT v. STATE.

6 Div. 353.

Court of Criminal Appeals of Alabama.

June 30, 1972.

McCollough, McCollough & Callahan, Birmingham, for appellant.

William J. Baxley, Atty. Gen., and David W. Clark, Asst. Atty. Gen., for the State.

TYSON, Judge.

The indictment charges the appellant with the statutory crime of obtaining property by false pretenses. Title 14, Section 209, Code of Alabama 1940 (Recompiled 1958). Jury trial resulted in a verdict of guilty, and judgment set sentence at one year and 360 days in the County Jail, which was subsequently reduced to thirty days in the County Jail and four years probation. ¹

The indictment consists solely of one count, alleging that:

'ROBERT N. PRATT did falsely pretend to Richard E. Mertrud with intent to defraud that he was an attorney at law qualified to practice law under the laws of Alabama, and by means of such false pretense obtained from the said Richard E. Mertrud one cashier's check of the value of Four Hundred Twenty-Five Dollars and Eighteen Dollars of the lawful currency of the United States of America, a more particular descritpion and denomination of which is to the Grand Jury otherwise unknown, the personal property of Richard E. Mertrud, against the peace and dignity of the State of Alabama.'

Richard E. Mertrud, prosecuting witness, testified that on May 21, 1970, he came to Alabama from New Jersey for the purpose of securing a divorce. He stated that he had previously contacted appellant by telephone with regard to obtaining a divorce through him, at which time appellant identified himself as an Alabama attorney. Subsequent to this telephone conversation, Mertrud received an answer and waiver form, admittedly sent by appellant, which he had his wife sign before coming to Alabama. Copies of said forms were introduced in evidence along with the envelope they were mailed in, which listed the appellant as 'Attorney at Law.'

Mertrud testified that after arriving in Birmingham on May 21, 1970, he contacted appellant who came to his motel room. When Mertrud asked for appellant's qualifications, appellant handed him a card and identified himself as an attorney. Mertrud stated that he then gave appellant a cashier's check in the amount of '425.00 and $18.00 in cash.' A receipt therefor was introduced in evidence which identified the appellant as an attorney and listed his local address. Mertrud left Birmingham the next day, May 22, 1970.

Mertrud next returned to Birmingham on October 19, 1970. In the meantime he had conversations with appellant by telephone pertaining to the divorce. On this second trip to Birmingham, Mertrud testified that appellant again identified himself as an attorney. The divorce decree, which Mertrud ultimately received, was introduced in evidence along with business cards, which appellant admitted having given to Mertrud, the same identifying appellant as an attorney.

The State's next witness was Fred J. Harp, a police officer for the City of Mountain Brook. Harp testified that at the request of the District Attorney he was present at a meeting in Birmingham at Mertrud's motel room between the appellant and Mertrud. It was his testimony that during this meeting appellant stated he was at that time an attorney. He further stated that the heard Mertrud ask appellant if he had the divorce papers, and appellant said that he would bring them the next day.

Following Officer Harp's testimony, there was a stipulation to the effect that on July 6, 1964, the appellant had voluntarily surrendered his license to practice law, and since that time had not been a licensed practicing attorney in Alabama.

Appellant took the stand in his own behalf and admitted having voluntarily surrendered his license to practice law in 1964. He stated that he had been engaged in the real estate business for the last four years.

Appellant testified that he received a telephone call from Mertrud in May, 1970; that Mertrud told him that a lawyer in New Jersey, by the name of Steinberg, had referred him to appellant concerning obtaining an Alabama divorce. It was appellant's testimony that he told Mertrud he could not handle the divorce personally, but that he would get someone to handle it. He admitted sending Mertrud an answer and waiver form upon request. Appellant further admitted receiving a cashier's check for $425.00 from Mertrud, and $16.00 or $18.00 in cash, but stated that upon receipt of these items he again told Mertrud that someone other than himself would be handling the divorce.

In relation to the business cards, which identified appellant as a lawyer, appellant admitted giving these to Mertrud at Mertrud's request in order that he might have something to show his girlfriend or wife that he was dealing with an attorney in Birmingham. Appellant insisted that at no time did he represent to Mertrud that he was a practicing attorney.

I

Title 15, Section 325, Code of Alabama 1940 (Recompiled 1958), reads as follows:

'Legal punishments specified; when court may sentence to hard labor.--The only legal punishments, besides removal from office and disqualification to hold office, are fines, hard labor for the county, imprisonment in the county jail, imprisonment in the penitentiary, which includes hard labor for the state, and death by electrocution. And in all cases in which the period of imprisonment in the penitentiary or hard labor for the county is more than two years, the judge must sentence the party to imprisonment in the penitentiary; and in all cases of conviction for felonies, in which such imprisonment or hard labor is for more than twelve months, and not more than two years, the judge may sentence the party to imprisonment in the penitentiary, or confinement in the county jail, or to hard labor for the county, at his discretion, any other section of this code to the contrary notwithstanding; and in all cases in which the imprisonment or sentence to hard labor is twelve months or less, the party must be sentenced to imprisonment in the county jail, or to hard labor for the county. Provided, however, no misdemeanor prisoner may be sentenced to the penitentiary.

'This section shall not be construed to relieve the board of corrections of any responsibility imposed upon it by law to make payment of costs under section 72, Title 45, Code of Alabama, or any other provisions of law applicable thereto. (1943, p. 401, appvd. July 8, 1943; 1957, No. 61, §§ 1, 2, appvd. June 21, 1957.)'

We are of the opinion that the judgment and sentence in the instant case fall within the purview of this statute.

II

After the State and the defense had rested, the jury retired to deliberate for a short time before court recessed for the day. When court reconvened the following morning, the appellant moved for a mistrial, assigning as grounds the fact that the jury was allowed to separate overnight without his consent or written approval. The record, page 154, bears out this contention. The trial court overruled the motion for mistrial without affording the State an opportunity to respond or present any testimony to show that no injury resulted from this separation.

In this regard Title 30, Section 97(1), Code of Alabama 1940 (Recompiled 1958), is controlling, and sets forth the following:

'Separation of jury by consent.--The provisions of this section shall apply only in the circuit court in counties having a population of 140,000 or more according to the last or any subsequent federal census.

'If the accused and his counsel and also the prosecuting attorney, in any prosecution for felony, whether capital or noncapital consent thereto in open court, the trial court in its discretion may permit the jury trying the case to separate during the pendency of the trial, whether the jury has retired or not. A separation so permitted shall not create a presumption of prejudice to that accused, but on the contrary it shall be prima facie presumed that the accused was not prejudiced by reason of the separation of the jury.

'It shall be improper for the trial court to ask the accused, counsel for the accused, or the prosecuting attorney in the hearing of the jury whether or not he or they will consent to a separation of the jury pending the trial. It shall be improper for the accused or counsel for the accused, or the prosecuting attorney to state to the trial court in the hearing of the jury that he or they consent to a separation of the jury pending the trial. (1943, p. 358, appvd. July 8, 1943.)'

It is well settled that where it appears from the record that the trial court, without the defendant's consent, allows the jury to separate during the trial of a felony case, such creates prima facially a cause for reversal. This Court per Cates, J., in Lee v. State, 47 Ala.App. 548, 258 So.2d 743, 745, said:

'We have three well-settled rules: First, during the trial of a felony the jury is to be kept together; Second, if the jury does separate, that fact is, prima facie, error to reversal; and Third, to overcome this presumption of error, the State has the onus of establishing that the separated juror or jurors were not subject to influence or contacts which Might have swayed them in reaching the verdict.'

Thus, where, as here, the separation is shown, the burden is on the State to affirmatively show that no injury resulted to the defendant from the separation. Arnett v. State, 225 Ala. 8, 141 So. 699; Payne v. State, 226 Ala. 69, 145 So. 650; Mitchell v. State, 244 Ala. 503, 14 So.2d 132; Lynn v. State, 250 Ala. 384, 34 So.2d 602; Christison v. State, 39 Ala.App. 175, 96 So.2d 701; Lee v. State, supra.

In light of these authorities, we have carefully examined the record and find therein no agreement, written or otherwise, to allow the trial jury to separate overnight during trial. Moreover, this point is conceded by the State on appeal. Therefore, we hold, the court below should have granted appellant's motion for a...