Brown v. State

• Court: Alabama Court of Appeals
• Citation: Brown v. State, 30 Ala.App. 27, 200 So. 630 (Ala. App. 1941)
• Decision Date: 21 January 1941
• Docket Number: 1 Div. 380.
• Parties: BROWN v. STATE.

200 So. 630

30 Ala.App. 27

BROWN v. STATE.

1 Div. 380.

Court of Appeals of Alabama

January 21, 1941

Rehearing Denied Feb. 4, 1941.

Appeal from Circuit Court, Mobile County; D. H. Edington, Judge.

James Brown was convicted of grand larceny, and he appeals.

Affirmed.

Certiorari denied by Supreme Court in Brown v. State, 200 So 634.

George A. Sossaman, of Mobile, for appellant.

Thos. S. Lawson, Atty. Gen., and Willard McCall Asst. Atty. Gen., for the State.

BRICKEN Presiding Judge.

The appeal here is from a judgment of conviction for the offense of grand larceny pronounced and entered against the appellant in the lower court at the May term, 1940, of said court.

The indictment in this case was in words and figures as follows "The Grand Jury of said County charge, that, before the finding of this indictment James Brown, whose name is to the Grand Jury otherwise unknown, feloniously took and carried away five thousand, seven hundred (5,700) brick, of the value of one and three-tenths cents ($.013) each, the personal property of Underwood Coal and Supply Company, a corporation, against the peace and dignity of the State of Alabama."

The record discloses, before entering upon the trial, in this case, and in answer to said indictment, the defendant interposed a plea of former jeopardy alleging therein:

"1. Comes the defendant and for plea says:--He ought not to be required to answer this indictment and the State ought not to prosecute the same against him because at a regular session of the Circuit Court of Mobile County, Alabama, on towit the 1st day of November, 1939, he was charged and put upon trial under an indictment which is in words and figures as follows:--

" 'The grand jury of said County charge that before the finding of this indictment, James Brown, whose name is to the grand jury otherwise unknown, while acting as the officer, agent or clerk of Underwood Coal and Supply Company, a Corporation, did embezzle or fraudulently convert to his own use or to the use of another or did fraudulently secrete with intent to convert to his own use, or the use of another, 5,700 bricks of a value of $1.30, per 100, which said bricks came into his possession by virtue of his said office, agency or employment, against the peace and dignity of the State of Alabama.'

"After trial, hearing, and consideration as to said offense, the State entered a nolle prosequi and defendant was discharged. And the defendant says that he is now charged in this indictment of this offense, which is based upon the same matter, and transactions as they have charged he was tried and acquitted as aforesaid in the first indictment. All of which the defendant is ready to verify and prays that he be discharged in the present indictment.

"2. Comes the defendant and for plea says:--He has once been in jeopardy of the offense of which he is now charged in this indictment; and that at a regular session of the Circuit Court of Mobile County, Alabama on the 1st day of November 1939, the defendant was in due form arraigned and pleaded not guilty to said offense charged, which was in substance as follows:--

" 'The grand jury of said County charge that before the finding of this indictment, James Brown, whose name is to the Grand Jury otherwise unknown, while acting as the officer, agent, or clerk of Underwood Coal and Supply Company, a Corporation, did embezzle or fraudulently convert to his own use or to the use of another or did fraudulently secrete with intent to convert to his own use, or the use of another, 5,700 bricks of a value of $1.30 per 100, which said bricks came into his possession by virtue of his said office, agency or employment, against the peace and dignity of the State of Alabama.'

"The defendant was thus put upon trial for such offense and after he had pleaded to the same and thus was in jeopardy, that the State entered a nolle prosequi of said charge and he was discharged. All of which the defendant is ready to verify and he prays judgment of the court that he be discharged from the premises in the present indictment specified."

The foregoing plea was filed in open court on March 4, 1940. And from the record we ascertain that the case was passed for trial until May 14, 1940, on which day the defendant filed, in further answer to the indictment the following additional pleas, towit:

"Additional Pleas Filed May 14, 1940.

"1. Comes the defendant and for answer to the indictment says 'not guilty.'

"2. Comes the defendant and for answer to the indictment says that heretofore on to-wit the 1st day of November, 1939 he was put upon trial in the Circuit Court of Mobile County, Alabama on an indictment charging him with embezzling the same bricks described in the present indictment. That as a part of said crime of embezzlement and as a necessary ingredient to a conviction therefor, it was necessary that the State prove that defendant had had possession of said brick. That said issue was litigated in said trial, and said trial resulted in the defendant being discharged by the court upon motion of the State, after the jury had been empaneled, sworn, and the indictment read and pleaded to, and the case entered upon its trial and witnesses had been heard. Defendant avers that it is a material ingredient of the crime charged in the present indictment, that he had had possession of said brick and therefore defendant says that this issue has already been adjudicated in his favor in the aforesaid case of embezzlement, and ought not now be again permitted to be inquired into in this cause. Wherefore, defendant pleads res judicata in this cause and prays that he be discharged from further answering same."

The order and judgment of the court, through which the court speaks, is as follows, as shown by the record:

"Tuesday May 14th, 1940.

"Grand Larceny.

"State's demurrer to defendant's pleas filed March 4th, 1940 and May 14th, 1940, sustained and defendant excepts.

"This day in open court came the State of Alabama by its Solicitor and the defendant in his own proper person and with his attorney and State's demurrer to defendant's pleas filed March 4th, 1940 and May 14th, 1940, coming on to be heard and being argued by counsel and understood by the court; It is ordered and adjudged by the court that State's said demurrer to defendant's pleas filed March 4th, 1940 and May 14th, 1940, be, and they are hereby sustained.

"And to which ruling of the court the defendant excepts."

The foregoing pleadings, and order and judgment of the court, present clearly and suficiently the questions raised by defendant's pleas.

The question, concretely stated, is, can a defendant be twice placed in jeopardy upon a single act complained of, by first being indicted, and tried, for the offense of embezzlement, and afterwards be indicted, tried and convicted, upon an indictment which charged him with the offense of grand larceny based upon the identical and same act, upon which the former trial was had for the offense of embezzlement.

This question is not without difficulty. The innumerable decisions of the appellate courts of this, and other states, appear to be in conflict.

As we see it, the established test to which a plea of former jeopardy must be subjected is, whether the facts averred in the second indictment, if found to be true, would have warranted a conviction upon the first indictment. In other words, in determining whether both indictments charge the same offense, the test generally applied is that when the facts necessary to convict on the second prosecution would necessarily have convicted on the first, a final judgment on the first prosecution will be a bar to the second; but if the facts which will convict on the second prosecution would not be sufficient to convict on the first, then the first will not be a bar to the second. Such has been the holding in innumerable decisions of the appellate courts of this State, some of which are hereby cited: Foster v. State, 39 Ala. 229; Gordon v. State, 71 Ala. 315; Hall v. State, 134 Ala. 90, 115, 32 So. 750; Ex parte State, etc., 210 Ala. 69, 70, 97 So. 240; Eastep v. State, 25 Ala.App. 593, 151 So. 616.

Here, the question is, could this appellant have been convicted under the first indictment, which charged him with the offense of embezzlement, upon the facts averred in the second indictment, if found to be true, which second indictment charged him with the offense of grand larceny? We think the question answers itself, and in accordance with, and upon authority of the above cited authorities, we hold there was no error in the action of the court in sustaining the State's demurrer to defendant's plea of former jeopardy.

Necessary and essential to a conviction for the offense of embezzlement, it was incumbent upon the State to show, by the required measure of proof, that the accused at the time of the alleged commission of the specific...