Curtis v. State

• Decision Date: 20 November 1913
• Parties: CURTIS v. STATE.
• Court: Alabama Court of Appeals

63 So. 745

9 Ala.App. 36

CURTIS v. STATE.

Court of Appeals of Alabama

November 20, 1913

Rehearing Denied Dec. 11, 1913

Appeal from City Court of Mobile; O.J. Semmes, Judge.

Chester A. Curtis was convicted of forgery, and he appeals. Affirmed.

R.C Brickell, Atty. Gen., and W.L. Martin, Asst. Atty. Gen., for the State.

THOMAS J.

The defendant was convicted of forgery under an indictment following literally the code form. Code, § 7161, form 61, p 670. The defendant urges that the indictment in this form was insufficient or defective in that (quoting) "two distinct and separately indictable offenses are alleged in the indictment in one and the same count both based on the same act, to wit: 'That, with the intent to injure or defraud, the defendant did alter, forge, or counterfeit a certain bank check' [set out in the indictment], and in the alternative alleges 'or with 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,' all of which [he adds] is in direct conflict with and contrary to the law as laid down by the Supreme Court in Gunter v. State, 111 Ala. 23 [20 So. 632, 56 Am.St.Rep. 17], and Clayborne's Case, 103 Ala. 53 , in which it is held that 'a series of charges cannot be based on the same act,' and in Ben v. State, 22 Ala. 9 , Moore v. State, 71 Ala. 309, and Hurst v. State, 86 Ala. 604 [6 So. 120, 11 Am.St.Rep. 79] in which it is held that 'a single crime cannot be subdivided into two or more offenses'; and defendant avers that section 7161 of the Code in accordance with which the indictment was written, is therefore unconstitutional."

A sufficient answer to this contention is found in the fact that the statute (Code, § 6909), defining the offense of forgery, for which the section (7161, form 61) now attacked was designed to furnish a form for charging the offense denounced, makes either of the acts set forth in the indictment forgery, and does not make one act, as here contended, two distinct crimes. See, also, Code, § 7151; Shelton v. State, 143 Ala. 98, 39 So. 377.

Another objection to the indictment was that the caption of the one served on defendant did not show the organization of the grand jury. This is not necessary under the law. Code, § 7131; Overton v. State, 60 Ala. 73. These are matters which properly appear only in the minutes of the court.

The defendant pleaded in abatement that a certain named member of the grand jury that returned the indictment against him was disqualified from serving as a grand juror by reason, first, that he was not a householder, and by reason, second, that he had been convicted of embezzlement in the inferior court of Mobile, which case, it was shown in the plea, had been appealed, and was still pending and untried on such appeal to the city court at the time the indictment was found and at the time the present trial was had. The court properly sustained a demurrer filed to this plea by the state, for the reason that, under our statutes--even assuming that the facts stated in the plea would disqualify the person from service, which we do not decide--it is provided that no objection can be taken to an indictment by plea in abatement, or otherwise, on the ground that any member of the grand jury was not legally qualified. Code, § 7572; Bluett v. State, 151 Ala. 52, 44 So. 84; Mathes v. State, 3 Ala. App. 12, 57 So. 390.

The defendant also undertook to set up by plea in abatement that the state's material witnesses, upon whose testimony the indictment was found, were incompetent witnesses, alleging as the grounds of their incompetency supposed contradictory affidavits made by them. The plea was stricken on motion based on the ground that the plea was frivolous and set up no defense to the indictment. In this there was no error. Perjury on the part of a witness--granting that the allegations of the plea showed this, though we are of opinion they do not--does not render the witness incompetent to testify. It is only a conviction for perjury that has this effect. Code, § 4008.

The defendant filed a plea of former jeopardy, in which he set up in effect that at a prior term of the court he was arraigned on an indictment charging the same offense as here, and that after the indictment had been read and he had pleaded not guilty to it and a jury had been lawfully sworn and legally selected to try the case, it was discharged by the court without an actual trial or rendering of a verdict. The court overruled a demurrer of the state to this plea (which was clearly defective--Lyman v. State, 47 Ala. 686), and submitted the issues of fact raised by it to a jury for determination, who returned a verdict on the plea in favor of the state, after hearing the evidence pro and con as to whether or not a jury had been selected as alleged in the plea, which seems to have been the really controverted question. On this point, the defendant as a witness for himself testified that, after he was arraigned and had pleaded not guilty to the indictment as alleged in the plea, the solicitor, turning to him, asked him if he was satisfied with the jury, to which he replied, "Yes." The solicitor as a witness for the state denied this, affirming that the only jury selected in that case was one to try the defendant's plea of misnomer at that time on file, and he (the solicitor) introduced in evidence the court record of the proceedings then had, which showed in one entry a trial upon defendant's plea of misnomer, a verdict and judgment thereon in favor of the state, and, in a subsequent entry, a judgment rendered on a later day to which the case was passed quashing the indictment on motion of defendant, and the holding of defendant under bail to answer a new indictment--the one now before us. Granting as true the facts claimed by defendant--that the case on the plea of not guilty proceeded to the point of selecting a jury--it would not be jeopardy if the indictment was quashed on his motion. 1 Mayf.Dig. 490, 491; 12 Cyc. 266.

The court in its oral charge to the jury on defendant's said plea of former jeopardy charged, among other things, in substance and to the effect that an agreement between opposing counsel in a criminal case on a particular jury to try the case would not constitute a selection of that jury to try the case within the sense and meaning here to be considered, unless that agreement was called to the attention of and approved by the court; that the matter of the selection of a jury is one upon which the court, as well as the parties, must act; that a defendant is entitled to a list of the venire from which to select the jury; and that if the solicitor and a defendant were to make an arrangement between themselves, as here contended, and agree on a jury in some other manner than the way the law provides, it would not constitute a selection of that jury, unless the court knew of and acquiesced in it. The court wound up the charge by telling the jury the question at issue under the plea was for them to decide. At the conclusion of the charge the defendant excepted as follows: "I except to your honor's instructions, because the proof shows here, the question involved came up right here in the courtroom in the regular procedure." Upon a statement by the court that he did not understand the exception, defendant continued: "I except to your honor's instructions because the proof in the case shows the question involved here is between the solicitor and myself came up after defendant had been arraigned in court." The court in reply said: "I leave that to the jury. I don't say whether it was or not. I am merely charging on the...