Favor v. State

Decision Date07 October 1980
Docket Number4 Div. 790
Citation389 So.2d 556
PartiesBlue Sky L. Rep. P 71,579 Joe Israel FAVOR v. STATE.
CourtAlabama Court of Criminal Appeals

Abner Powell of Powell & Powell, Andalusia, and Thomas T. Gallion of Gallion & Gallion, Montgomery, for appellant.

Charles A. Graddick, Atty. Gen. and Joseph G. L. Marston, III, Asst. Atty. Gen., for appellee.

BOOKOUT, Judge.

Violation of Alabama Securities Act, §§ 8-6-3(a) and 8-6-4, Code of Ala.1975 (four indictments); sentence: $1000 fine and eighteen months imprisonment consecutively on each charge.

In the fall of 1975, appellant sold corporate securities on behalf of National Developers, Inc., and Alabama corporation, to several farmers in Covington County. Appellant informed the purchasers that those Series "A" 12% notes would finance the construction of a fertilizer plant in nearby Elba, Alabama. The appellant was not a registered securities dealer or salesman at the time nor were the notes registered and recorded in the Register of the Alabama Securities Commission.

I

The appellant, Joe Israel Favor, was indicted for violating Alabama's "blue sky" laws, §§ 8-6-3(a) and 8-6-4, Code of Ala.1975. Four 1 indictments were returned against him, each containing identical counts. Upon appellant's request, these indictments were consolidated in one trial.

Appellant contends that the indictments were insufficient because they did not name the vendees in these securities transactions. He thus asserts that his timely demurrers to the indictments were improperly overruled by the trial court. We disagree.

The indictments precisely follow the Code forms prescribed in §§ 15-8-150(87) and (92), Code of Ala.1975. Section 15-8-150 commences with the statement: "The forms of indictment set forth in this section in all cases in which they are applicable, are sufficient." Both indictment Forms No. 87 and 92 particularly refer to the pertinent sections of the Alabama Securities Act under which appellant was indicted.

The issue would appear then to be whether due process requires the naming of the vendee or whether we merely accept the Code form as sufficient. It is obvious that in failing to name the vendee, an accused is not apprised of which transaction he is called upon to defend where he may have engaged in similar transactions at various times. Likewise, for purposes of double jeopardy the particular transaction should be clearly identifiable. We recognized those basic requirements of due process in Andrews v. State, Ala.Cr.App., 344 So.2d 533, cert. denied, Ala., 344 So.2d 538 (1977), in reversing the conviction for assault on one of two unnamed police officers. However, here we must follow a different rule because we are bound to follow the decisions of the Alabama Supreme Court per § 12-3-16 Code of Ala.1975, and that court has ruled on this issue.

In Adkins v. State, 291 Ala. 695, 287 So.2d 451 (1973), a case involving the illegal sale of drugs for which there was no specific indictment form, our supreme court held that it was not necessary to name the vendee in the indictments. In support of that reasoning, the majority cited inter alia the then equivalent of current Forms No. 87 and 92 and pointed out "in no instance does the form require the name of the vendee." Chief Justice Heflin, dissenting in Adkins, commented with respect to securities indictments:

"It would appear then that all of the form indictments for selling prohibited liquors, sales by unregistered dealers, etc., which do not purport to name the vendee are sustained under the rationale set out above, that is, since the form meets the basic constitutional requirement, it is sufficient because the legislature says so even though all material elements of the offense, i. e., the buyer, are not set out."

This court dutifully followed Adkins in Manson v. State, Ala.Cr.App., 349 So.2d 67 (1977), cert. denied, Ala., 349 So.2d 86. That case dealt with Alabama's securities laws and the sufficiency of indictments brought thereunder. This court endeavored in Manson to explain the reason for the two different standards, stating:

"Whether the name or identity of persons other than the accused is necessary to sustain the sufficiency of an indictment has been previously resolved.... Generally, where the alleged crime is one necessarily involving an injury to the person or the personal right of another, or damage to property or a property right of another, the name or identity of the other must be stated in the indictment.

"The reasons the name or identity of other persons is generally required usually disappear when the particular crime charged does not necessarily involve any injury to the person or property of another. As to those that do, it is to be noted that even the Code forms of indictment require in general that the name or identity of the other person be alleged; as to the other kind, the name or identity of the other is not usually required, and, when required, a reason therefor appears, which is not applicable to most of such crimes...."

It therefore appears that the gist of the instant offense is the "selling" of the illegal item, and the offense does not depend upon the identity of any particular purchaser or vendee. Whereas, in crimes against the person, an injured party is an indispensable element of the offense and must beidentified the same as the item sold must be identified in "selling" cases. However, regardless of the rationale used, Adkins, supra, controls, and the trial court was not in error in overruling the demurrer to the indictments.

II

Appellant submits that the trial court committed reversible error when it sustained an objection raised during cross-examination of a state employee concerning his mileage expenses. Appellant argues that cross-examination of this witness was essential to show the possible extent of his interest, bias, or prejudice.

James G. Pugh, a witness for the State, was a securities examiner with the State Securities Commission who testified about his investigation of appellant's activities. During cross-examination defense counsel offered to show by Mr. Pugh that, as a state employee, his mileage expenses were paid to travel to Covington County and testify before the grand jury and at trial. We find no error in the trial court sustaining the district attorney's objection to that line of questioning. Pugh had testified that his employer was the State of Alabama. When appellant's attorney next querried, "So, I presume from that, you draw your paycheck from the State of Alabama," the witness answered affirmatively. Any potential bias or prejudice of the witness in favor of the State was thus clearly before the jury. Therefore, cross-examination as to his mileage expenses in this case would be repetitious and argumentative. Atwell v. State, Ala.Cr.App., 354 So.2d 30 (1977), cert. denied, Ala., 354 So.2d 39; Ball v. State, Ala.Cr.App., 337 So.2d 31 (1976), cert. denied, Ala., 337 So.2d 39. The Alabama Supreme Court in State v. Howington, 268 Ala. 574, 575, 109 So.2d 676 (1959), stated:

"(T)he latitude and extent of cross-examination is a matter which of necessity rests largely within the sound discretion of the trial court, and rulings with respect thereto will not be revised on appeal except in extreme cases of abuse...."

In the instant case we are not persuaded that the ruling of the trial court was prejudicial to the appellant or that there was an abuse of discretion. See also: Rule 45, Alabama Rules of Appellate Procedure.

III

Appellant argues that the trial court improperly denied a motion for mistrial after the prosecutor asked the appellant, whether he had previously been put on probation, violated his probation, and been sent to the penitentiary.

The record indicates that while cross-examining the defendant the prosecutor inquired whether the defendant was convicted on May 30, 1958, in the Circuit Court of Montgomery County for disposing of mortgaged property and sentenced to eighteen months in the penitentiary. Without objection the appellant answered affirmatively. Subsequently, on recross-examination, the following transpired:

"BY MR. McGILL:

"Q. Mr. Powell asked you about that car for which you were convicted in Montgomery County. Isn't it also a fact that you were put on probation and then violated your probation and were sent to the penitentiary, weren't you?

"A. That's right.

"MR. POWELL: We object to that and move for a mistrial.

"THE COURT: Sustained. Deny the motion for mistrial. The jury is instructed to disregard anything beyond the point of conviction."

Appellant's attorney then assigned grounds for a mistrial, and the trial judge once again admonished the jury to disregard the question and denied the motion for a mistrial.

A defendant, when testifying in his own behalf, may be questioned on cross-examination as to whether he has been convicted of a crime involving moral turpitude for the purpose of attacking his credibility as a witness. White v. State, Ala.Cr.App., 347 So.2d 566 (1977); § 12-21-162, Code of Ala.1975. However, care should be exercised so as not to include an offense that does not involve moral turpitude. Kennedy v. State, Ala.Cr.App., 371 So.2d 464 (1979). Whether disposing of mortgaged property is a crime involving moral turpitude is not in issue as no objection was interposed and no ruling by the trial court was elicited when that matter came into evidence. However, the matter of the probation violation is in issue. It is clear to us that a probation violation is not a "crime" of any kind and is thus not admissible per se under § 12-21-162, Code of Ala.1975. Whether reversible error resulted from such disclosure requires further discussion.

Generally, on cross-examining a witness about his prior convictions, only inquiries about the designation of the crime, the time and place of conviction, and the punishment are proper. Conley v. State, Ala.Cr.App., 354 So.2d 1172 (1977); Gamble, McElroy's Alabama Evidence, §...

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    ...violation means that "'scienter' or 'guilty knowledge'" is an essential element of criminal offenses under the ASA. Favor v. State, 389 So. 2d 556, 562 (Ala. Crim. App. 1980); see also Van Antwerp v. State, 358 So. 2d 782, 786 (Ala. Crim. App. 1978), overruled on other grounds by Ex parte M......
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