Bullard v. State, 8 Div. 695

• Decision Date: 10 May 1960
• Docket Number: 8 Div. 695
• Parties: F. M. BULLARD v. STATE.
• Court: Alabama Court of Appeals

Page 580

120 So.2d 580

40 Ala.App. 641

F. M. BULLARD v. STATE.

8 Div. 695.

Court of Appeals of Alabama.

May 10, 1960.

Johnson & Randall, Oneonta, for appellant.

MacDonald Gallion, Atty. Gen., and David W. Clark, Asst. Atty. Gen., for the State.

HARWOOD, Presiding Judge.

This appellant has been adjudged guilty or forgery in the second degree.

The evidence of the State tended to show that in an accounting suit in equity between the appellant and M. T. Williams, or Troy Williams, there had been marked for identification at appellant's request a receipt for $300 allegedly signed by M. T. Williams for a payment made by appellant to Williams.

This receipt was later used by counsel for appellant in examining a witness in the equity proceedings.

There was also marked for identification a note allegedly signed by M. T. Williams and by appellant and his son, said note being for $1,000, and payable to J. O. Rice.

M. T. Williams testified that he had signed the note, but had not signed the receipt.

The note and receipt had been examined by Dr. C. J. Rehling, State Toxicologist. After being qualified as an expert, Dr. Rehling testified that, based upon his studies of the note and the receipt, such as microscopic examination, and photographic enlargements, it was his opinion that the signature on the receipt was a tracing or copy of the signature of M. T. Williams appearing on the note.

The evidence for the appellant was directed to showing that Williams had in fact signed the receipt after it had been written out by appellant's wife; that the receipt was for $300 paid by appellant to Williams for Williams' interest in an automobile.

The evidence is ample in its tendencies to support the verdict and judgment. The lower court did not err in refusing appellant's request for the affirmative charge, or his motion for a new trial on grounds going to the sufficiency of the evidence.

Counsel for appellant argue that error resulted from the overruling of their objection to the introduction of the receipt, counsel having based their objection on the ground of a variance between the instrument set forth in the indictment and the allegedly forged receipt.

The indictment is in code form, and the instrument or receipt allegedly forged is decribed as being in writing in words and figures susbtantially as follows:

'10/9/57, Received from F. M. Bullard $300.00 paid in full for 1952 Olesmobile that he traded in on a 57 Ford Pickup truck at Jack Oliver's Motor, Boaz, Alabama, s/ M. T. Williams.'

The alleged variance pointed out by counsel results in two instances from ambiguity arising from the handwriting in the receipt. Counsel asserts that the word 'received' in the indictment is actually 'recered' in the receipt, and that in the receipt Bullard's initials are written as F. nn. instead of F. M., as in the indictment.

The receipt is before us and we have examined it.

As to the word alleged by counsel to be 'recered,' comparison with the letter 'v' as it appears in 'Oliver's' in the receipt indicates that 'receved' was what is written. This is but a misspelling of 'received.'

The initials before Bullard appear to us to be F. M. instead of F. nn., as counsel contend.

Whether or not there is a variance between the instrument set forth in the indictment and that produced on the trial is, in case of ambiguity, a question of fact for the jury. See 23 Am.Jur. Forgery, Sec. 53.

Further, differences consisting of abbreviations and misspelling are immaterial. Sec. 53, supra.

Counsel for appellant argue as another variance the fact that as set forth in the indictment the letter ' § ' followed by a slant mark (s/) appear before the signature of M. T. Williams in the indictment, whereas no such characters are on the receipt.

The insertion of the word 'signed' before the signature as set out in an indictment for forgery is not a variance which makes the original instrument inadmissible. People v. Crane, 4 Cal.App. 142, 87 P. 239. The letter ' § ' appearing before a signature in a copy of an instrument is merely an abbreviation of the word 'signed.' See Webster's New International Dictionary under 'Abbreviations.' The slant mark is completely immaterial.

Counsel further argues that in the indictment the motor company is described as 'Jack Oliver's Motor, Boaz, Alabama,' whereas in the receipt the company is set forth as 'Jack Oliver's Motors, Boaz, Alabama.'

This variation is scarcely perceptible and is immaterial. Huddleston v. State, 37 Ala.App. 57, 64 So.2d 90; a person of common understanding would not be misled thereby. This renders this slight variance immaterial. Hollis v. State, 37 Ala.App. 453, 70 So.2d 279.

During the cross-examination of State's witness Williams, he was asked who got the $1,000, meaning the proceeds of the note introduced in evidence by the State, which note bore the true signature of Williams.

The court first sustained the State's objection to this question.

The record then shows the following:

'The Court: Yes, sir. I take it they introduced it purely and simply for one purpose.

'Mr. J. T. Johnson: When it went in it is admissible for any purpose. They opened the door.

'The Court: All right. Who got the money from that?

'The Witness: Me and Mr. Bullard both.

'The Court: All right. Objection overruled to that particular question we had before.

'Mr. Clark Johnson: Mr. Williams----

'Mr. J. T. Johnson: Wait.

'Mr. Clark Johnson: Are you through?

'Mr. Lusk: No, in view of the last ruling of the court.

'The Court: Go ahead.

'Q. (By Mr. Lusk) Did you not get all of the $1,000.00 yourself? A. We both got it.

'Q. Are you saying you didn't get all of the $1,000.00? A. Well, I have handled several thousands.

'Q. Did you or not get all the $1,000.00?

'Mr. Clark Johnson: That is getting far afield. Getting in deep water and the issues, they have no place here.

'The Court: Sustain the objection. Anything further?

'Mr. J. T. Johnson...