Evans v. State

• Decision Date: 09 March 1965
• Docket Number: 5 Div. 632
• Citation: 172 So.2d 796,42 Ala.App. 587
• Parties: Thomas G. EVANS v. STATE.
• Court: Alabama Court of Appeals

Page 796

172 So.2d 796

42 Ala.App. 587

Thomas G. EVANS v. STATE.

5 Div. 632.

Court of Appeals of Alabama.

March 9, 1965.

J. Sydney Cook, Jr., Auburn, Walker & Hill, Opelika, Rogers, Howard, Redden & Mills, Birmingham, for appellant.

Richmond M. Flowers, Atty. Gen., and David W. Clark, Asst. Atty. Gen., for the State.

CATES, Judge.

Evans was convicted under an indictment charging him with forging an instrument having testamentary effect. Found guilty, sentenced to five years imprisonment, he appeals from conviction and the overruling of his motion for new trial.

Zebulon Judd died September 5, 1960, intestate with some fifty-nine claimants for his lands, goods and chattels of a value of some $500,000.00.

Evans filed May 3, 1961, in the Lee County Probate Court a petition praying that an instrument therewith surrendered be probated and admitted to record as the true last will and testament of Judd.

The instrument appears in the indictment, and came in evidence as State's Exhibit No. 1, viz:

STATE'S EXHIBIT NO. 1TA TABLE

This indictment is the short form prescribed by Code 1940, T. 15, § 259, No. 64, catchlined 'Forgery of will, deed, note, bill, bond, receipt, or other written instrument,' and is cross referenced to T. 14, § 200. This latter section reads:

' § 200. Any person who, with intent to injure or defraud, falsely makes, alters, forges, counterfeits, or totally obliterates any will of real or personal property, or any deed, conveyance, or other instrument, being or purporting to be the act of another, by which any right or interest in property is, or purports to be transferred, conveyed, or in any way changed or affected; or any bond, bill-single, bill of exchange, promissory note, or any indorsement thereof, the forgery of which does not constitute forgery in the first degree; or any warehouse receipt, or receipt for the payment of money, or any instrument or writing, being or purporting to be the act of another; or any entry in any book account, by which any pecuniary demand or obligation is or purports to be created, increased, discharged, or diminished; or who, with such intent, utters and publishes as true any falsely made, altered, forged, or counterfeited instrument, writing, indorsement, or entry, specified or included in this section, is guilty of forgery in the second degree.'

The State apparently relies upon Evans's having supposedly made an admission against interest which furnishes corroboration of Chandler, the State's main witness. Snoddy v. State, 75 Ala. 23; Harris v. State, 32 Ala.App. 519, 27 So.2d 794.

Evans, in testifying, admitted that the paper on which the State's Exhibit No. 1 was typed up and signed was not delivered to him by Mr. Elmer Sellers, a job printer of Auburn, Alabama, until sometime in January, 1959. This the State contends is contradictory of and establishes fraud in the use of the stated date, 'December 9, 1958,' at the top of Exhibit 1.

I. The State's Evidence

The alleged scheme required the complicity of the subscribing witness, Herman Chandler.

Chandler testified that in April of 1958 Judd had him witness Judd's signature to a paper. 'It was a one page paper * * * it was a note that Mr. Evans owed Doctor Judd. Further down toward the end it was agreement to leave each other the coop factory in case of one of them's death, the other one got it all.'

Chandler recalled asking Judd if he was making out a will. To which Judd rejoined laughingly, 'Well you can call it that.'

Chandler denied that what he saw at that time was the instrument set out in the indictment, Exhibit No. 1, supra. The paper he saw then (April, 1958) had no letterhead on it.

On the 27th of March, 1961, some six months after Judd's death, Chandler testified that Evans called him asking him to come to his place of business. Thence the two men rode in Evans's car. The record then shows:

'A He told me that he had a paper that he would like to get me to sign. And I took the paper and read it. It is the paper that I just saw there, that you showed me.

'Q That is State's Exhibit one? [See above for text.]

'A Yes, sir. And I asked him if that was legal, for me to sign that paper. He said that they had found a law that I did not have to be--a witness did not have to be in the presence of the maker of the paper or of the other witness of the paper. And he said that he wanted to use this paper, because the lawyers for the estate were trying to prove Doctor Zebulon Judd insane at the time of the first paper. And he wanted to use this paper--the words he used were, to throw in their lap, to show that he could not be insane two different times. And I signed the paper.

'Q That is your signature there on State's Exhibit one?

'A Yes, sir. That is my signature.

'Q I show you State's Exhibit one and ask you if that is the paper that you signed?

'A That is the paper I signed on the 27th of March, 1961.

'Q Now, did you later have a conversation with Tom Evans?

'A Well, that same day we went up to Mr. Sid Cook's office and I signed another statement in his office. That he typed out himself.

'Q You signed a statement.

'A In Mr. Sid Cook's office. Which is also dated the 27th of March, 1961.

'Q And what was the contents of that statement that you signed there? What was it?

'A It was stating what I testified as of the paper I signed in 1958. And it was not dated. Where it says on or about on that paper, there is no date there, which I said, do not include a date there, I am not sure of the date until I go and check with the company and find out when I actually signed that paper. In 1958.'

An oddity of the so-called 1958 paper was that Chandler described it in terms of a contract for mutual testamentary disposition of the chicken coop factory. Yet, his testimony never refers to Evans's having signed it.

The State Toxicologist, Dr. Rehling, was called and gave as his opinion that all signatures were genuine. He testified that the typewriter used was an L. C. Smith machine. Dr. Rehling observed an Underwood typewriter at Dean Judd's home; its lettering was quite different in character from that appearing on State's Exhibit No. 1.

After the State had first gone into the matter, the defense showed by a certified copy of a judgment that Chandler had been convicted of robbery in Georgia.

The trial court judge charged the jury:

'* * * The evidence shows that he had been convicted of a crime involving moral turpitude. That is, he had been convicted of the crime of robbery, which is a crime involving moral turpitude. Now Gentlemen of the Jury, that conviction of that crime did not render him incompetent to testify as a witness. The evidence as to his former conviction of a crime involving moral turpitude only goes to his credibility. And that is for you Gentlemen of the Jury to determine, the credibility of his testimony.'

See Code 1940, T. 7, § 434.

II. Corroboration of Accomplice

Before reviewing the facts falling under the requisites of T. 15, § 307, we shall analyze its principles. This section reads:

' § 307. A conviction of felony cannot be had on the testimony of an accomplice, unless corroborated by other evidence tending to connect the defendant with the commission of the offense; and such corroborative evidence, if it merely shows the commission of the offense or the circumstances thereof, is not sufficient.'

The first question is as to the seriousness of the crime charged: § 307 applies only to felony. Hence, if the question is presented only by a request to the trial judge for the general affirmative charge as to the entirety of a count, it must then be clear that the accusation embraces no lesser included misdemeanor. Doss v. State, 220 Ala. 30, 123 So. 231, 68 A.L.R. 712.

The second enquiry then leads us to examine Wigmore's 'testimonial source,' i. e., as to whether or not the witness is an accomplice. Axiomatically, if he is not an accomplice, his testimony is entitled to credit alone.

Conversely, the accomplice alone cannot be the source of corroboration. Thus, in People v. White, 62 Hun 114, 16 N.Y.S. 571, a forger who testified that the defendant had forged some other notes failed thereby to meet the test because there was no other evidence respecting these other notes, and even though they were extrinsic to the charge, they failed to have an independent standing as the occasion of their coming into evidence.

Another accomplice's testimony may be cumulative but cannot be corroborative. Morris v. State, 17 Ala.App. 126, 82 So. 574.

The third enquiry relates to the tenor of the testimony, both that given by the accomplice and that which is offered to corroborate him. This is the substance of treatment in most opinions.

From Sorrell v. State, 249 Ala. 292, 31 So.2d 82, we are indebted to the scholarship of Mr. Justice Simpson for the minimum requisites of the corroborative (or corroboratory) testimony:

a) Fact (or circumstance) of substantive character;

b) Fact (or circumstance) tending to prove guilt;

c) Fact (or circumstance) which is unequivocal (and certain) in character (i. e., inconsistent with the innocence of accused);

d) Fact (or circumstance) tending legitimately to connect defendant with crime (must do more than raise a suspicion of guilt);

e) Semble, opinion evidence alone to corroborate must concern itself with some object or fact (i. e., an opinion, standing by itself, of a trait or likelihood of human conduct would be not of substantive character).

See also McElroy, Law of Evidence in Alabama (2d Ed.), § 300.01.

For present purposes, the application of the statute (§ 307) can probably better be illustrated by those cases where the prosecution has been held to have failed to meet this burden of proof rather than by those in which sufficient corroboration was found.

Under Marler v. State, 68 Ala. 580, sought for corroboration failed because the State's evidence was deemed by Mr. Justice Somerville to be 'per se irrelevant.' The testimony so characterized...