Christison v. State, 7 Div. 426

• Decision Date: 13 August 1957
• Docket Number: 7 Div. 426
• Citation: 96 So.2d 701,39 Ala.App. 175
• Parties: Helen CHRISTISON v. STATE.
• Court: Alabama Court of Appeals

Page 701

96 So.2d 701

39 Ala.App. 175

Helen CHRISTISON v. STATE.

7 Div. 426.

Court of Appeals of Alabama.

Aug. 13, 1957.

Geo. Murphy and Roy D. McCord, Gadsden, for appellant.

John Patterson, Atty. Gen., Bernard F. Sykes and Jas. W. Webb, Asst. Attys. Gen., for the State.

PRICE, Judge.

Appellant was indicted for the offenses of forgery and embezzlement. The indictment contained three counts. The conviction was for embezzlement under the second count. Punishment was fixed at five years imprisonment in the penitentiary.

One of the main questions for review on this appeal arises from the trial court's denial of defendant's motion for a new trial on the ground of the separation of the jury during the progress of the trial.

The trial began on March 12, 1956, and ended on March 15, 1956. The jury was allowed to go to their respective homes on the nights of March 12th, 13th and 14th, and to separate at lunch time and during other recesses.

At the end of the first day of the trial the court stated: 'Gentlemen we will take an adjournment until tomorrow morning. You will not be kept together during recess, nor at night,' and instructed the jury that during such recess they were not to discuss the facts of the case with each other nor with anyone else.

The transcript of the testimony in the record further shows that when the court adjourned on each of the other days, and at other recesses, the court gave to the jury 'the usual instructions as to their precautions and conduct during the recess.'

The settled rule in this State is that the separation of the jury pending trial for felony cases creates, prima facie, a cause for reversible error. When the fact of the separation is established the burden is on the State to affirmatively show that no injury resulted to 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; Bradford v. State, 35 Ala.App. 561, 50 So.2d 286; Huddleston v. State, 37 Ala.App. 57, 64 So.2d 90.

In Wright v. State, 262 Ala. 420, 79 So.2d 74, 75, our Supreme Court, denying certiorari, pointed out that in non-capital felonies the defendant may consent to a separation of the jury, and stated further: 'In such a situation the court being apprised of such consent beyond the hearing of the jury may in its discretion authorize such a separation. In this event there would be no burden on the state to establish affirmatively that the separated juror or jurors were subjected to no influence or contacts that might have influenced their verdict.'

In support of the motion the defendant offered the transcript of the testimony taken during the trial and the motion, which was sworn to by the defendant, setting up the fact that the jury, without the consent of defendant or her attorneys, was permitted to go to their respective homes each night, and allowed to separate at meal time and other recesses during the trial.

'A verified petition and verified answer are treated as evidence, because they are affidavits. Salmon v. Salmon, 180 Ala. 252, 60 So. 837.' Ex parte Green, 221 Ala. 298, 299, 129 So. 72, 73.

The evidence introduced by the defendant sufficiently established the fact of the separation of the jury. No evidence was submitted by the State to rebut the defendant's prima facie right to a new trial, therefore, the denial of the motion constituted reversible error.

Since, for the reasons pointed out, the judgment must be reversed, we will set out only the portion of the evidence necessary to illustrate our view that the defendant was not entitled to the general affirmative charge as to count 2 of the indictment because of a fatal variance between the allegations of said count and the proof offered on the trial.

Count 2, omitting the formal parts, charges that defendant, 'the custodian of Etowah County School Funds, and being then and there entrusted with the disbursement of money or funds belonging to the Board of Education of Etowah County, Alabama, did embezzle or convert to her own use, or to the use of another, $225.00, lawful United States Currency, which said money had come into her possession by virtue of her public office or public trust, as above set out * * *.'

The evidence for the State tended to show that the defendant was bookkeeper and general secretary of the Etowah County Board of Education. She was custodian of the Etowah County school funds, receiving and disbursing all of the the county school monies. The said funds were deposited in the American National Bank of Gadsden in the name of the Custodian of Etowah School Funds. Appellant had sole authority to sign checks on said account.

It is the contention of the State, and evidence was introduced tending to support such contention, that on January 16, 1951, appellant signed a check in her official capacity as custodian in the sum of $225 made payable to Helen Christison, bookkeeper; that she endorsed the check; that it was paid by the bank, and the proceeds deposited in appe...