Christison v. State

• Citation: 41 Ala.App. 192,142 So.2d 666
• Decision Date: 13 December 1960
• Docket Number: 7 Div. 588
• Parties: Helen CHRISTISON v. STATE.
• Court: Alabama Court of Appeals

Page 666

142 So.2d 666

41 Ala.App. 192

Helen CHRISTISON v. STATE.

7 Div. 588.

Court of Appeals of Alabama.

Dec. 13, 1960.

Rehearing Denied Jan. 17, 1961.

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

MacDonald Gallion, Atty. Gen., and Jas. W. Webb, Asst. Atty. Gen., for the State.

CATES, Judge.

Miss Christison appeals from a judgment based on a general verdict of guilt on a two count indictment. The trial judge sentenced her to five years imprisonment.

The two pertinent counts ¹ are as follows:

'Count One

'The Grand Jury of said County charges that before the finding of this Indictment Helen Christison, alias Helen A. Christison, whose name to the Grand Jury is otherwise unknown than as stated, did, with intent to injure or defraud, alter, forge or counterfeit a certain bank check, which was in substance as follows:

"'General Fund No. 5028 1/2

Gadsden, Ala. January 23, 1951

Pay to the order of Clorene C. Hallmark $225.00 Two Hundred Twenty-five and No/100 Dollars

The American National Bank Jan SPR 50-51 Gadsden, Ala.

Helen A. Christison

Custodian, Etowah County

School Funds

endorsed:

Clorene C. Hallmark'

or with the intent to injure or defraud, did utter and publish as true the said falsely altered, forged, or counterfeited bank check, knowing the same to be so altered, forged or counterfeited, contrary to law and against the peace and dignity of the State of Alabama.'

'Count Three

'The Grand Jury of said County further charges that before the finding of this Indictment Helen Christison, alias Helen A. Christison, whose name to the Grand Jury is otherwise unknown than as stated, 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, a bank check in the amount of $225.00, and of the value of $225.00, drawn by the said Helen Christison, alias Helen A. Christison, as Custodian of the Etowah County School Funds, made payable to Clorene C. Hallmark, and drawn on the American National Bank of Gadsden, Alabama, a national banking association chartered by the Federal Government through the office of the Comptroller of the Currency, which said bank check had come into her possession by virtue of her public office or public trust, as aforesaid, contrary to law and against the peace and dignity of the State of Alabama.'

Another count, numbered two, charging embezzlement of $225 of the Board's money was nol prossed on the defense's filing pleas of autrefois acquit.

The Hallmark check, according to the State's evidence, was originally made payable to 'Helen Christison--Bookkeeper,' and the reverse was also thus endorsed in pencil. Etowah County Exchange, Inc., was the second endorser. Miss Christison's sister, Edna, worked for the Exchange at that time.

Presumably after the bank paid the check and charged it to Miss Christison's account as Custodian, the payee's description was changed to read 'Clorene C. Hallmark' as was the endorsement. Clorene C. Hallmark, a teacher on maternity leave without pay in January, 1951, denied that she had written the purported endorsement.

Over defense objection, because of showing other offenses, the trial judge admitted checks (other than the Hallmark check) as bearing on 'system,' 'intent,' 'motive' and 'identity.' ² All of them, according to the State's evidence, were forged as were the endorsements; each alteration was of the name of the payee. At the close of the State's case in chief, the endorsements (including that of the Hallmark check) and the evidence concerning their alteration were confined by the court solely for the jury to consider as bearing on the embezzlement count.

Miss Christison's brief urges the following points of claimed error: (1) the denial by the court below of her pleas of autrefois acquit; (2) admission of evidence of other forged checks; (3) validity of the Hallmark check; (4) variances and lack of proof as tested against the allegate of count one; (5) admission of opinion testimony; (6) argument of the solicitor; (7) the overruling of demurrers to count one; and (8) the refusal of written charges.

The double jeopardy issue arose from Miss Christison's acquittal by a petty jury on December 12, 1957, of the charges in a three count indictment presented by the same grand jury which brought in the instant true bill. The grand jury there had accused Miss Christison (a) of forging a $250 custodian check payable to Louis Kirkland, (b) of embezzling $250 currency, and (c) of embezzling the Kirkland check.

Upon the filing of the pleas of autrefois acquit, the solicitor nol prossed count two (embezzlement of $225 currency) of the instant indictment. After proof of the prior acquittal the trial judge gave the jury peremptory instructions in favor of the State.

In view of the State's nol prossing count two of the indictment, the only substantial question presented by the direction of the verdict on the double jeopardy issue is that raised by the question certified by us to the Supreme Court, i. e., as to whether or not an accusation of embezzlement of a check is the same as one of embezzling money. The Supreme Court's answer of November 15, 1960, shows the ruling of the trial judge to be correct. See Ala., 142 So.2d 663.

As to the admission in evidence of other forged checks, the rule applied in Mason v. State, 259 Ala. 438, 66 So.2d 557, 42 A.L.R.2d 847 (i. e., prohibiting evidence of other crimes), does not apply here: rather the exception illustrated in the false pretense scheme in Brown v. State, 37 Ala.App. 516, 74 So.2d 273, affirmed 261 Ala. 696, 74 So.2d 277, governs. In McDonald v. State, 83 Ala. 46, 3 So. 305, a forgery case, one purportedly forged note to a merchant was used to show intent to defraud through the utterance of another. Hall v. State, 21 Ala.App. 476, 109 So. 847; McElroy, The Law of Evidence in Alabama (2d Ed.), § 70.11.

That some of the other checks were apparently forged before and after the Hallmark check is unobjectionable. Wright v. State, 138 Ala. 69, 34 So. 1009: order of August 20 admissible on charge of order dated August 7. Smith v. Smith (Fla.) 59 So.2d 625; Annotation 34 A.L.R.2d 777, at 812-13.

State's Exhibit A, the Hallmark check itself, also had thereon: (a) in longhand--'Correction OK H. A. C.'; (b) the bank's transit number '61-66'/621; (c) the words, 'Know your endorser require indentification'; and (c) in a vertical panel on the left side of the check the words, 'General Fund,' a legend also appearing in the horizontal text and set forth in count one, supra.

We consider these variations immaterial. Discrepancies and omissions which do not distort the meaning or distract from the legal efficacy of the instrument are not fatal variances. At 23 Am.Jur., Forgery, § 47, we find:

'* * * It is not necessary to set out marks, ornaments, or marginal figures which form no part of the contract, since they are no part of the forged instrument. Nor is it necessary to state any other matter written on the same, constituting no part of the instrument itself, and not entering into it as an essential description of the instrument. * * *'

We are not unmindful of the statement in Gayden v. State, 38 Ala.App. 39, 80 So.2d 495, 500, that 'the instrument alleged to have been forged must be set out * * * either in haec verba or according to its legal tenor.' However, the forgery there charged was of a prescription of a narcotic drug, a felony under Code 1940, T. 22, § 255, as amended by Act No. 306, July 27, 1951. No provision was made for a short form indictment for that offense.

Also, without juggling the semantical nuances of 'haec verba' and 'ipsissima verba,' we note that the former of these expressions does not call for all the words but merely requires accuracy in the words which are used. See McDaniel v. State, 20 Ala.App. 407, 102 So. 788. Even that rigidity may be relaxed where, as here, the indictment (which follows Code 1940, T. 15, § 259, No. 63) uses the expression 'in substance as follows.'

Defense counsel point out that the alteration of the Hallmark check took place after the check had been paid, stamped and cancelled by perforation. Hence, it is argued, the instrument was functus officio, as it were, and no longer a check. Its demise as a negotiable instrument, it is argued, produced a fatal variance between charge and proof.

Under Hamilton v. State, 35 Ala.App. 570, 50 So.2d 449, it was held that first, second and third degree forgery each is a distinct offense, rather than a degree of one inclusive crime of three degrees. This distinction, however, is not important here because the word check can describe an instrument the subject of either first or second degree forgery. Earlier when it was necessary under Benson v. State, 124 Ala. 92, 27 So. 1, to prove the incorporation of a national bank, ³ it was nevertheless held that an indictment in Code form for first degree forgery could charge second degree forgery because the check was also 'a bill of exchange.' See Wyatt v. State, 257 Ala. 90, 57 So.2d 366.

So, too, where the forgery is shown to have given the cancelled check a new operation, i. e., as a receipt for the payment of money purportedly the act of another, Clorene C. Hallmark, the altered payee, the charge of count one is valid because that instrument was not only a check but also a voucher whereunder Miss Christison feigned to charge herself. Thus, in Nix v. State, 20 Okl.Cr. 373, 202 p. 1042, 1044, 26 A.L.R. 1053, we find:

'It is contended by the defendant that after the $6 check in controversy was delivered to Minnie McCoy and by her indorsed and cashed, and the canceled check returned to the defendant, this canceled check, bearing her signature and indorsement, had then spent its force as an order to pay money, was 'functus officio,' was evidence of no obligation between the...