Flippo v. State

• Decision Date: 15 August 1972
• Docket Number: 8 Div. 263
• Citation: 49 Ala.App. 138,269 So.2d 155
• Parties: Warren FLIPPO v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 155

269 So.2d 155

49 Ala.App. 138

Warren FLIPPO v. STATE.

8 Div. 263.

Court of Criminal Appeals of Alabama.

Aug. 15, 1972.

Rehearing Denied Sept. 12, 1972.

J. Terry Huffstutler, Jr., Guntersville, for appellant.

William J. Baxley, Atty. Gen., and Richard F. Calhoun, Asst. Atty. Gen., for the State.

HARRIS, Judge.

Appellant was indicted for the offense of grand larceny. Omitting the formal parts, the indictment charges 'that before the finding of this indictment Warren Flippo, whose name to the Grand Jury is otherwise unknown, feloniously took and carried away twelve (12) hogs, of the value of $200.00, the property of Wannie Clary, against the peace and dignity of the State of Alabama.'

He filed a plea of misnomer alleging that his true name is Warren Flippo, Jr., and not Warren Flippo as set forth in the indictment. The State demurred on the ground that 'Jr.' was not material to the indictment and the court sustained the demurrer. There was no error in sustaining the State's demurrer. Taylor v. State, 282 Ala. 567 Appellant filed a motion to quash the indictment for failure to aver that the property allegedly stolen was the Personal property of the owner, Wannie Clary. The court overruled the motion to quash.

213 So.2d 566, Certiorari denied 393 U.S. 1102, 89 S.Ct. 903, 21 L.Ed.2d 795.

Our grand larceny statute, as last amended, provides, in pertinent part, as follows:

'Any person who steals any horse, mare, gelding, colt, filly, mule, jack, jennet; * * * and any person who steals any personal property, except any cow or animal of the cow kind, other than hereinbefore enumerated, of the value of twenty-five dollars, or more, * * * shall be guilty of grand larceny, and, on conviction, shall be imprisoned in the penitentiary for not less than one nor more than ten years.' Title 14, Section 331, Code of Alabama 1940 Pocket Parts.

A 'hog' is not among the animals enumerated in the above section but is covered by 'any personal property, * * * of the value of twenty-five dollars, or more, * * *' contained in said section.

The prescribed form for a grand larceny indictment is Form 66, Section 259, Title 15, Code of Alabama 1940, and in each of four forms there suggested the words 'personal property of' the owner appears.

The indictment in the instant case is defective for failure to aver that the hogs were 'the personal property of Wannie Clary'. This defect does not render the indictment void. The constitutional requirement that the accused be made aware of the nature and cause of the charge against him was met. The proper way, however, to reach defects in an indictment is by demurrer and not by motion to quash. Duncan v. State, 278 Ala. 145, 176 So.2d 840; Boulo v. State, 49 Ala. 22; Daniel v. State, 149 Ala. 44, 43 So. 22.

In White v. State, 74 Ala. 31, Chief Justice Brickell, speaking for the Court said:

'There was no error in the action of the Circuit Court in refusing to quash the indictment upon the motion of the appellant. The entertaining of a motion to quash is, as a general rule, in the sound discretion of the lower court, and not revisable by this court on appeal.--State v. Jones, 5 Ala. 666. In Nixon v. State, 68 Ala. 535, it was left undecided by the court, whether or not there might be cases in which a refusal to quash an indictment upon motion would be revisable; but we are clearly of opinion that the present is not such a case.'

Appellant, then seventeen (17) years of age, pleaded guilty to the indictment and received a sentence of eighteen (18) months in the penitentiary.

Within the time allowed by law, appellant filed a motion for a new trial and for the first time called the court's attention to Act No. 335, approved February 10, 1972, which is referred to in brief as the 'Youthful Offender Act'. Appellant was indicted on January 6, 1972, some thirty-six (36) days Before Act No. 335 was signed into law by the Governor, and he pleaded guilty to the indictment on February 23, 1972, some thirteen (13) days After the approval of the Act. The Reporter will set out this Act in full in the report of this case. (See Appendix.)

Upon the hearing of the motion for a new trial involving the Act in question the trial judge stated that appellant would probably be entitled to the benefits of Act No. 335, and he would grant him a new trial if the act was constitutional. He went on, however, to hold the act unconstitutional saying, in part, as follows:

'A review of the foregoing statute reveals there are no standards and there is no way for the statute to be applied to all those it affects in even a roughful equal manner. Past experience teaches us that some judges would make much use of the Act and some would use it infrequently, if at all.

'The Act could be used to discriminate on the basis of race, or economic status, or any other capricious manner. The statute is subject to and would invite arbitrary and capricious treatment. We believe it's impossible for the judiciary to apply the statute in a reasonable, natural, evenhanded manner. This being the case, the statute must fall. The only alternative would be for the Appellant Courts of this State to imply and write into the statute reasonable standards for application of the Act, which would constitute the enactment of legislation by the judiciary. The judiciary in this State has refused consistently to do this.

'The Court, therefore, holds the Youthful Offender Act is unconstitutional; first, because of the jury trial provisions. This in itself is sufficient to cause the entire statute to be invalid, as the removal of the jury trial provision would place in effect an entirely different plan or scheme than that which the Legislature had in mind; and, in addition, the failure of the Legislature to provide reasonable standards for application of the Act is another reason why the Act must fall. The foregoing is the join(t) opinion of both judges of this circuit, and is adopted by the undersigned in this case.

'Although the Court will deny the defendant's motion for a new trial because of the unconstitutionality of the Act, upon re-consideration, the Court is of the opinion that the defendant's sentence should be reduced to one year and one day imprisonment in the penitentiary, inasmuch as an adult who also participated in the crime involved in this case received a more favorable sentence.

'It is, therefore, CONSIDERED, ORDERED AND ADJUDGED by the Court as follows:

'1. That the said 'Youthful Offenders Act' (House Bill 281, approved February 10, 1972) is unconstitutional for the reasons set out above, and that the defendant's motion for a new trial is denied solely for and on account of the unconstitutionality of the Act and for no other reason.

'2. That in accordance with the above opinion the Court reduces the defendant's term of imprisonment in the penitentiary from 18 months to one year and one day, and the final judgment of the Court is so amended.

'Done this the 17 day of April, 1972.

'/s/ Clark E. Johnson, Jr.

Circuit Judge of the 27th

Judicial Circuit'

The State urges us to strike down Act No. 335 as being unconstitutional for two reasons:

1. The Act requires a youthful offender to waive his constitutional right to a trial by jury in order to be eligible for the substantial benefits afforded by the Act, and

2. The Act fails to provide any standards, pre-requisites, or guidelines to govern the trial courts in determining which defendants should receive these benefits and who should be denied such benefits.

Just as strongly appellant insists the Act is free of any constitutional taint and is but an expression of the warm solicitude the Legislature has for wayward minors and was adopted with the intent to benefit youth who makes his first mistake, and that he should not be branded as a criminal therefor; and the guidelines should be those used to determine probation.

We are thus presented with an important constitutional question.

Act No. 335 was borrowed, body and soul, from the 'Model Sentencing Act' proposed and recommended by the Advisory Council of Judges of the National Council on Crime and Delinquency. The 'Model Sentencing Act' was patterned, in large measure, from the State of New York's The age bracket for youthful offenders under the New York law is 16 to under 19 and under the Federal Juvenile Delinquency Act to anyone who has not attained his eighteenth birthday. Act No. 335 is applicable to any person charged with a crime committed in his minority, involving moral turpitude, but not disposed of by juvenile proceedings. Hence, the age bracket is over 16 and under 21 years, laying aside local statutes.

Youthful Offender Act and particularly Sections 913--g and 913--h of the New York Code of Criminal Procedure in force and effect prior to September 1, 1971. In 1971, the New York Legislature materially changed the Youthful Offender process. CPL Article 720.10--720.35. Act No. 335 is also similar in many respects to the Federal Juvenile Delinquency Act, 18 U.S.C.A. Sections 5031--5037.

In declaring Act No. 335 unconstitutional because of the jury trial waiver provision the trial court said:

'The Court notes that the Youthful Offender Act was taken from the 'Model Sentencing Act' as proposed and recommended by the Advisory Council of Judges of the National Council on Crime and Delinquency, which, in turn, is patterned substantially on a Legislative Act of the State of New York in the case of People vs Michael A. C. (Anonymous), 27 N.Y.2d 79, 313 N.Y.S.2d 695, 261 N.E.2d 620, July 2, 1970, held that the sections of the Act relating to waiver of a jury trial were unconstitutional. This Court fully agrees with and supports the reasoning of the New York Court, and adopts the reasoning and arguments of that Court with reference to the jury trial provision of the Act. Also, when an act is adopted in this State patterned after an act in another State, the Court decisions of such other State construing the act are also...