Brown v. State

• Decision Date: 17 June 1975
• Docket Number: 3 Div. 351
• Citation: 55 Ala.App. 314,314 So.2d 917
• Parties: Ike BROWN v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 917

314 So.2d 917

55 Ala.App. 314

Ike BROWN v. STATE.

3 Div. 351.

Court of Criminal Appeals of Alabama.

June 17, 1975.

J. Floyd Minor, Montgomery, for appellant.

William J. Baxley, Atty. Gen., and Gary R. Maxwell, Asst. Atty. Gen., for the State, appellee.

LEIGH M. CLARK, Supernumerary Circuit Judge.

Appellant was convicted of the offense of forgery in the second degree, Code 1940, Title 14, Section 200, and his punishment fixed at imprisonment in the penitentiary for a term of thirteen months.

The indictment charged that defendant 'with intent to injure or defraud did falsely make, alter, forge or counterfeit an instrument in writing, in words and figures substantially as follows:

(A facsimile of the face of a check purportedly drawn on Central Bank of Montgomery by Comala Credit Union, by Laura Graham and payable to Cleve Carter, Jr., for the sum of $50.00 and a facsimile of the back thereof showing the purported endorsement of Cleve Carter, Jr.)

or, with intent to injure or defraud, did utter and publish as true, the said falsely made, altered, forged, or counterfeited instrument in writing, knowing the same to be so made, altered, forged, or counterfeited, . . .' Omitted from the quoted part of the indictment are some of the formal contents not pertinent here, and omitted from the foregoing summary of the photocopy of the face and back of the instrument recited in the indictment are some barely decipherable (as usual) signs, symbols, words, and numerals, stamped, stained or engraved thereon, indicating negotiation and payment of the check.

On arraignment, defendant pleaded not guilty. He thereafter attempted to enter a plea of guilty, but the plea was not accepted by the court. The case was then set for trial July 29 and then continued for trial to July 31, 1974. On that date, after the jury venire had been qualified, the jury selected by the process of striking and the jury sworn to well and truly try the issues in the particular case, counsel for defendant stated:

'Judge, we question the sufficiency of the indictment, in that the Defendant is charged with a forged endorsement and the indictment doesn't inform him anywhere in the indictment that he is charged with a forged endorsement.'

Thereafter, a three-page colloquy ensued, consisting largely of argument of defendant's counsel and argument of counsel for the State, with comments by the trial judge. The discussion ended with the following:

'THE COURT: Well, I wanted you to be sure to state for the matter of your record that you were demurring to the indictment. Because, I believe that would be the proper instrument for the Defense to use.

'Demurrer is hereby overruled.'

to which ruling defendant's counsel reserved an exception. No further reference to the particular matter is found in the record.

The major theme of appellant is that the indictment should have charged defendant with forgery of the endorsement on the check.

There was no contention by the State, and there was no evidence on the trial, that there was any forgery of any portion of the face of the check. As counsel for defendant indicated by his opening statement with reference to the matter, he and defendant knew that defendant was being 'charged with a forged endorsement.' Other portions of the colloquy confirmed this, as indicated by a portion of his argument in the trial court as follows:

'. . . if it is the intent to prosecute for forgery on back of an otherwise genuine instrument, then the indictment should be so drawn as to coincide with such intention. Otherwise, Defendant would not be sufficiently informed to enable him to prepare his defense.'

In his argument to the trial court, and on this appeal, counsel relies largely upon Wright v. State, 40 Ala.App. 683, 122 So.2d 555, in which it was stated:

'If the intent is to prosecute for forgery of an endorsement on the back of an otherwise genuine instrument then the indictment should be so drawn as to coincide with such intention. Brown v. State, 30 Ala.App. 339, 7 So.2d 24. Otherwise an accused would not be sufficiently informed to enable him to prepare his defense.'

In Wright v. State, supra, defendant had filed a plea of former jeopardy, asserting that he had been previously indicted for forging the check involved in the case; that he was placed on trial and after evidence had been presented, and prior to the instruction of the jury by the court, the State offered to amend the indictment by adding additional counts. The appellant and his counsel refused to consent to the amendment, and the court entered an order dismissing the prosecution, and ordered the appellant held for the grand jury to prefer a new indictment. A new indictment was returned, in which it seems that defendant was charged with forging the endorsement to the check. The court on appeal upheld the action of the trial court in sustaining the State's demurrer to the plea of former jeopardy, the opinion of the court on appeal stating:

'. . . The question therefore arises as to whether, under the first indictment charging forgery of the face of the check, a variance arose when the proof in the first trial showed that the face of the check was genuine, but the endorsement of the payee's name on the back had been forged.'

The court's resolution of that question affirmatively was dispositive of the issue as to the efficacy of the plea of former jeopardy. The court tested the question whether there was a variance by:

'. . . whether the facts alleged in the latter indictment, if proved, would warrant a conviction on the first indictment. Mitchell v. State, 16 Ala.App. 635, 80 So. 730; Smith v. State, 25 Ala.App. 339, 146 So. 426.'

The decision in Wright finds solid support in Brown v. State, 30 Ala.App. 339, 7 So.2d 24, cert. denied, 242 Ala. 485, 7 So.2d 28. In Brown appellant had been convicted under an indictment charging him with forgery in the second degree of an instrument described as a county warrant, in which the evidence showed that the warrant itself was genuine, but there was evidence to show that defendant had forged the signature of one of the payees in an endorsement of the warrant. No question was raised as to the sufficiency of the indictment, but by request for the affirmative charge at the conclusion of the trial, defendant raised the point that there was a variance between the indictment and the proof, in that the indictment charged him with the forgery of the warrant and the...