Coleman v. State

• Decision Date: 19 April 1973
• Citation: 276 So.2d 589,290 Ala. 346
• Parties: John D. COLEMAN v. The STATE of Alabama. SC 271.
• Court: Alabama Supreme Court

Page 589

276 So.2d 589

290 Ala. 346

John D. COLEMAN v. The STATE of Alabama.

SC 271.

Supreme Court of Alabama.

April 19, 1973.

Edward F. Morgan, Tuscaloosa, for appellant.

William J. Baxley, Atty. Gen., and David W. Clark, Asst. Atty. Gen., for the State.

FAULKNER, Justice.

Appellant, John D. Coleman, was indicted by the Grand Jury of Tuscaloosa County for the offense of forgery in the second degree in violation of Title 14, § 200, Code of Alabama 1940, Recompiled 1958. ¹ Coleman, together with his attorney of record, waived his right to a jury trial. The case was tried by the circuit judge on a plea of not guilty. Coleman was found guilty as charged and sentenced to a year and a day in the State penitentiary of Alabama. He appealed from such conviction to the Alabama Court of Criminal Appeals and assigned two errors. First, he challenged the order of the trial judge overruling the demurrer to the indictment. The thrust of the demurrer was that the indictment showed on its face that the offense sought to be charged was that of violation of the Credit Card Act, Title 14, § 105(4)(i) (ii). ² The second error assigned is that the State's evidence revealed that Coleman violated the Credit Card Act and that such evidence was insufficient to prove forgery in the second degree. On February 21, 1973, the cause was transferred to this court from the Court of Criminal Appeals.

The indictment reads as follows:

'The Grand Jury of said County charge that before the finding of this indictment JOHN DOUGLAS COLEMAN whose name is otherwise unknown to the Grand Jury with intent to injure or defraud, did falsely make, alter, forge, or counterfeit a certain credit card invoice * * * or with intent to injure or defraud, did utter and publish as true the said falsely made altered, forged, or counterfeited credit card invoice knowing the same to be so altered, forged, or counterfeited, against the peace and dignity of the State of Alabama.'

The evidence is summarized in a stipulation announced in open court by Coleman's attorney, Edward F. Morgan:

'MR. MORGAN: Your Honor, as counsel for the Defendant, the Defendant agrees to stipulate for the purposes of this trial that he was advised of his constitutional rights by Detective Ingram and that he voluntarily, without hope of reward or without any threats, told Detective Ingram that he used the credit card with the name of J. A. Walker on it without any authority from J. A. Walker to do so and that he signed the credit card invoice with the name of J. A. Walker, which is State's Exhibit Number 1.'

The Credit Card Act was passed by the Legislature of Alabama in 1969. See 1969 Acts of Alabama, No. 1116, Vol. III, p. 2059. Section II of this Act, which is codified as Title 14, § 105(11), Code of Alabama 1940, Recompiled 1958, provides that:

'This chapter shall not be construed to preclude the applicability of any other provision of the criminal law of this state which presently applies or may in the future apply to any transaction which violates this chapter, unless such provision is inconsistent with the terms of this chapter.'

Forgery in the second degree pertains to the altering, forging, counterfeiting, with intent to injure or defraud of numerous instruments listed in Title 14, § 200, Code of Alabama 1940, Recompiled 1958. Among those listed instruments are 'any instrument or writing, being or purporting to be the act of another.' The credit card invoice to which Coleman affixed the forged signature is such an instrument.

We do not consider forgery in the second degree inconsistent with violation of the credit card chapter. Each offense is cumulative of the other. Both offenses belong to the same general family of crimes, i.e., obtaining property by false and fraudulent means. In such situation different felonies may be joined in one count in the alternative of the punishment is the same. They may be joined in Separate counts of the same indictment even though punishable by different degrees of severity. Flournoy v. State, 34 Ala.App. 23, 37 So.2d 218 (1948), and cases cited therein.

But we are not here concerned with alternative charges growing out of one offense. The indictment charges only one offense, i.e., forgery of the described credit card invoice.

There can be no doubt that it is within the competency of the legislature to create two or more criminal offenses which may be committed by a single act. Gunter v. State, 111 Ala. 23, 20 So. 632 (1895); Smithson v. State, 34 Ala.App. 343, 39 So.2d 678 (1949). In such event, the state may elect to prosecute for either offense, or under either statute. See 22 C.J.S. Criminal Law § 9(1), and particularly footnote 41, where numerous cases from some fifteen states and several federal cases are cited.

In Clonts v. State, 42 Ala.App. 287, 161 So.2d 155 (1964), the appellant had been convicted of obtaining five automobile tires by false pretense. He was sentenced to imprisonment in the penitentiary for five years. The evidence showed that the tires were obtained by the appellant by using a credit card and driver's license belonging to Dr. Carney who had lost...