Crump v. State
| Decision Date | 24 June 1941 |
| Docket Number | 8 Div. 56. |
| Citation | 30 Ala.App. 241,4 So.2d 188 |
| Parties | CRUMP v. STATE. |
| Court | Alabama Court of Appeals |
Rehearing Denied June 30, 1941.
Fred S. Parnell, on Florence, for appellant.
Thos S. Lawson, Atty. Gen., and John W. Vardaman, Asst. Atty Gen., for the State.
The indictment in this case charged the defendant with the offense of forgery. It contained but one count, and the instrument alleged to have been forged was set out in haec verba. The specific charge was confined to the forgery of said instrument by the defendant. The form in the Code was not followed, there being no charge, "or with intent to injure or defraud did utter and publish as true the said falsely altered, forged or counterfeited [instrument], knowing the same to be so altered, forged or counterfeited." Code 1940, tit. 15, § 259, form 63.
Notwithstanding the fact that the single, specific act of forgery of the said instrument was charged in the indictment; and that there was no charge that the defendant with intent to defraud did utter and publish as true the alleged instrument knowing the same to be altered, forged or counterfeited, the trial court throughout the whole oral charge instructed the jury as to said offense of uttering or publishing, etc., the said instrument and that they could convict the defendant for so doing if the evidence convinced them beyond a reasonable doubt that the defendant was guilty of uttering and publishing said alleged forged instrument knowing the same to have been so altered, forged or counterfeited. The trial court was without authority to charge the jury upon any issue not involved in the trial of this case, and no such issue as the one under discussion was so involved. But as to this, while the oral charge in this case on this subject was de hors the record and improper, this court cannot place the trial court to reversible error in this connection, as no exception was reserved to the action of the court in this regard.
This appeal is rested here upon the insistence of a fatal variance between the allegations in the indictment, and the proof in support of same. "Allegata et probata," means, "literally, things alleged, and things proved." In other words, the allegations made in the indictment, "and the proof adduced in their support." 3 Corpus Juris Secundum, Allegata, p. 884. The phrase is frequently used to express the rule that the allegations in the pleadings and the evidence in support thereof must correspond. "The allegata and probata must agree; the latter must support the former." C.J.S. supra.
Appellant makes the insistence that, ...
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Ex parte State, No. 1080395 (Ala. 8/21/2009)
...add to, or take from, any of the material averments in the indictment, which speaks for itself and is conclusive." Crump v. State, 30 Ala. App. 241, 242, 4 So. 2d 188 (1941).'" Lewis, 811 So. 2d at 488 (quoting Barbee v. State, 417 So. 2d 611, 613-14 (Ala. Crim. App. 1982 ) (emphasis added ......
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Ex parte State of Alabama. ,.
...add to, or take from, any of the material averments in the indictment, which speaks for itself and is conclusive." Crump v. State, 30 Ala.App. 241, 242, 4 So.2d 188 (1941).'" Lewis, 811 So.2d at 488 (quoting Barbee v. State, 417 So.2d 611, 613-14 (Ala.Crim. App.1982) (emphasis added in The ......
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Ex parte Harper
...violates any of the provisions of the act,' ... , and Barbee v. State, 417 So.2d 611 (Ala.Crim.App.1982), citing Crump v. State, 30 Ala.App. 241, 4 So.2d 188 (1941), which held as " 'Upon these authorities we conclude that a reference in an indictment to the statute defining the offense can......
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Coleman v. State
...an indictment. Neither may the trial judge charge the jury upon any issue not properly involved in the trial of the case. Crump v. State, 30 Ala.App. 241, 4 So.2d 188, cert. denied, 241 Ala. 588, 4 So.2d 190 (1941). See Sims v. State, 23 Ala.App. 594, 129 So. 485 (1930). While the trial jud......