Dailey v. State

• Decision Date: 26 June 1979
• Docket Number: 3 Div. 12
• Citation: Dailey v. State, 374 So.2d 414 (Ala. Crim. App. 1979)
• Parties: Isaac Charles DAILEY v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 414

374 So.2d 414

Isaac Charles DAILEY v. STATE.

3 Div. 12.

Court of Criminal Appeals of Alabama.

June 26, 1979.

Rehearing Denied Aug. 21, 1979.

David T. Hyde, Jr., Evergreen, for appellant.

Charles A. Graddick, Atty. Gen., and Mary Jane LeCroy, Asst. Atty. Gen., for the State.

HARRIS, Presiding Judge.

Appellant was convicted of forgery and the court sentenced him to imprisonment in the penitentiary for ten years. Throughout the trial proceedings appellant was represented by court-appointed counsel and at arraignment pleaded not guilty. After sentence was imposed he gave notice of appeal and is in this court with a free transcript. Trial counsel was appointed to represent him on appeal.

The evidence presented by the State made out a clear cut case of forgery. Appellant did not testify but offered alibi evidence. On rebuttal the State completely exploded appellant's alibi testimony.

The indictment upon which appellant was brought to trial was in Code form. Omitting the formal parts it reads as follows:

"The Grand Jury of said County charge that before the finding of this indictment, Isaac Charles Dailey, alias Isaac Dailey, alias Floyd D. Gray, whose name is to the Grand Jury otherwise unknown, with intent to injure or defraud, did alter, forge, or counterfeit a certain check which was in substance as follows:

     THE STATE OF ALABAMA          No. 1881
                       ESCAMBIA COUNTY
                BOARD OF COUNTY COMMISSIONERS      $160.00
                                                --------------
                       BREWTON, ALABAMA         Jan. 11th 1977
                                                 --------- --
                "PAY TO Floyd D. Gray, OR ORDER
                          --------------
                One Hundred and Sixty Dollars, DOLLARS
                ------------------------------
                OUT OF MONEYS IN THE TREASURY TO THE CREDIT
                OF THE GENERAL FUND
                PAYABLE THROUGH
                THE BANK OF BREWTON
                BREWTON, ALABAMA                 Charles Lee
                                                --------------
                                                BOARD CHAIRMAN
                

or with intent to injure or defraud, did utter and publish as true the said falsely altered, forged or counterfeited check, knowing the same to be altered, forged or counterfeited,

against the peace and dignity of the State of Alabama."

The original of the alleged forged instrument was attached to the indictment.

The evidence adduced by the State tended to show that, on Tuesday, January 11, 1977, appellant entered White's Auto Store and identified himself as "Floyd D. Gray" to Mrs. Polly Salter, an employee of the store. He asked Mrs. Salter if she could cash a check for him. He handed her the check and she turned and gave the check to Mrs. Sue Jernigan who was the wife of the owner of the store. Mrs. Jernigan cashed the check for appellant.

Mrs. Salter got a good look at appellant at close quarters in a well lighted store. She identified State's Exhibit 1 as the check which appellant handed to her at the counter. She testified that appellant wore a mustache at the time he was in the store and he was not wearing glasses. However, he was wearing glasses at the time of his trial. The following April or May she was shown two photographs by a Deputy Sheriff and she identified appellant as the man who handed her the check to cash on January 11, 1977. She made a positive in-court identification of appellant as the man who presented her with the check. She based her identification on having seen appellant in the store and not on the photograph presented to her by the officer.

Mrs. Sue Jernigan identified State's Exhibit 1 as the check she cashed for appellant on January 11, 1977. She, too, made a positive in-court identification of appellant. She stated appellant was not wearing glasses the day she cashed the check, but he had a mustache and a crew cut hair style. Her husband deposited the check for payment but the check was returned unpaid by the bank, marked "signature not authorized."

On cross-examination Mrs. Jernigan testified that she attended a lineup at the jail in which there were five or six black males. Without the slightest hesitation she identified appellant as the man for whom she cashed the check on January 11, 1977. She based her in-court identification of appellant on having seen him in the store when she cashed the check and not on the lineup identification. Stated another way, the lineup identification had no influence or impact whatsoever on her in-court identification.

Mr. James R. Lynn, a cashier at the Bank of Brewton, testified that the signature on the check admitted into evidence was not an authorized signature on the Escambia County Commission account. He stated the only person authorized to sign a County Commission check was Onree Owens. He examined State's Exhibit 1 and said the signature on the check was unauthorized. The check was admitted into evidence over appellant's objection that it was not shown to be unauthorized.

State's Exhibit 1 is in words and figures as follows:

    "THE STATE OF ALABAMA          No. 1886
                       ESCAMBIA COUNTY
                BOARD OF COUNTY COMMISSIONERS       $160.00
                                                ---------------
                       BREWTON, ALABAMA         Jan. 11th 1977
                                                 --------- --
                "PAY TO Floyd D. Gray,             OR ORDER
                          --------------
                One Hundred and Sixty Dollars,      DOLLARS
                ------------------------------
                OUT OF MONEYS IN THE TREASURY TO THE CREDIT
                OF THE GENERAL FUND
                Payable Through
                THE BANK OF BREWTON
                Brewton, Alabama                  Charles Lee
                                                ---------------
                                                BOARD CHAIRMAN"
                

It can be readily seen that the only difference in the check set out in the indictment and State's Exhibit 1 are the check Numbers. The number of the check in the indictment is "1881" and the number on State's Exhibit 1 is "1886". Other than the numbers the two instruments are identical in verbiage, names, dates and amounts.

On rebuttal Mr. T. O. Owens testified that he was Chairman of the Escambia County Commission and was the only person authorized to sign checks on the County Commission's account. He further stated he did not sign the check admitted into evidence.

The defense recalled Mrs. Salter and she testified that appellant came into the store on the afternoon of January 11, 1977, between 1:00 and 5:00.

Eugene McCaskill stated that he worked with appellant during the first two weeks of January, 1977, laying bricks on a construction job. He testified that appellant was at work from 7:00 in the morning until dark, around 5:00 or 5:30 p. m. McCaskill said appellant was not out of his presence for more than a few minutes between 1:00 and 5:00 that afternoon. He claimed that he remembered the date of January 11, 1977, because he had gotten appellant out of the Escambia County Jail in Brewton on Monday, January 10, and they worked together that afternoon and the next day to the weekend.

Robert Drawbaugh testified that he hired appellant and McCaskill to lay the bricks on a house he was building. He remembered appellant getting out of jail on Monday morning, working that afternoon, and then coming back to work Tuesday morning around 7:00 and working the remainder of the week. He stated he was at the construction site all day every day and that appellant got off work between 4:30 and 5:00.

On rebuttal the State called G. S. Byrne, the Sheriff of Escambia County, who brought his jail records. These records, identified as State's Exhibits 2 and 3, revealed that appellant was put in jail on January 1, 1977, and released the same day. The next time appellant was put in jail was on January 29, 1977, and released on ...