Fuller v. State
| Citation | 257 Ala. 502,60 So.2d 202 |
| Decision Date | 15 May 1952 |
| Docket Number | 6 Div. 351 |
| Parties | FULLER v. STATE. |
| Court | Supreme Court of Alabama |
Frederick V. Wells, Birmingham, for petitioner.
Si Garrett, Atty. Gen., and Thos. M. Galloway, Asst. Atty. Gen., opposed.
The indictment is as follows:
'The grand jury of said county charge that, before the finding of this indictment,
Daniel W. Fuller
with intent to injure or defraud, did falsely make, alter, forge or counterfeit an instrument in writing, in words and figures substantially as follows:
Date Clerk Dept No
14 01 500
Charge to
William Samuel Wyatt, Jr
Street
R.F.D. 3
Box 475 A 10144-46
Purchaser
William S. Wyatt, Jr
1 suit 39.50
1 o coat 29.99
------
64.49
1.29
------
65.78
or, with intent to injury or defraud, did utter and publish, as true, the said falsely made, altered, forged, or counterfeited instrument in writing, knowing the same to be so made, altered, forged, or counterfeited.
against the peace and dignity of the State of Alabama.'
The petitioner was convicted on a trial in the circuit court of forgery in the second degree and was sentenced for a term of ten years in the penitentiary as punishment for the offense. On his appeal to the Court of Appeals the judgment was affirmed. Thereupon he filed petition for writ of certiorari in this court to review the opinion and judgment of the Court of Appeals. Certiorari was granted and the matter of review was submitted on brief without oral argument.
The indictment consists of a single count and charges the forgery of a sale ticket or memorandum, which is set out in the indictment in haec verba, without the averment of extrinsic facts, showing that it is within the scope of the statute and the subject of forgery,--'disclosing its capacity to deceive and defraud.' Rembert v. State, 53 Ala. 467, 469, 25 Am.Rep. 639.
The contention of the petitioner is that the said sale ticket, which does not on its face purport to be signed and which is undated, does not disclose with whom the transaction referred to was had, nor when, nor where. If the said sale ticket is the subject of forgery at all, it is contended, it is forgery in the third degree, the offense denounced by § 205, Title 14, Code of 1940, which is a misdemeanor and not within the scope of the indictment.
The defendant did not challenge the insufficiency of the averments of the indictment by demurrer, but on motion for new trial challenged its failure to show by the averments of extrinsic facts that said writing was within the scope of the statute upon which it rests. Code of 1940, Title 14, § 200.
As pointed out by the Court of Appeals, the appellant, petitioner here, relies on our decisions holding that where the indictment has but a single count and its averments are not sufficient to show that the act charged constitutes a violation of the law, a judgment rested thereon should not be sustained, though no objection was made thereto by the defendant on the trial. Allen v. State, 241 Ala. 137, 2 So.2d 321; Jinright v. State, 220 Ala. 268, 125 So. 606.
The cited cases are differentiated from cases where the indictment contains good counts or good alternative averments, showing that the act or acts charged constitute a violation of the law, upon which the judgment of conviction may be rested. As observed in Hornsby's case, 'To sustain a judgment of conviction, there must be a good count in the indictment, or if there is but one count, containing charges in the alternative, there must be one or more good and sufficient averments. * * *' Hornsby v. State, 94 Ala. 55, 10 So. 522, 525. Ex parte State (State v. Collins), 200 Ala. 503, 76 So. 445; Jackson v. State, 236 Ala. 75, 182 So. 83.
The Court of Appeals in holding the indictment sufficient to sustain the judgment of conviction grounds its opinion on the italicized alternative following the words, '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; * * *.' [Italics supplied.] The opinion states:
'We are unable to find any case from our jurisdiction in which a sales slip of the kind in question formed the basis of a prosecution for forgery. Our view that the instant indictment is sufficient is aided by authorities which have reviewed instruments somewhat analogous in character.
'In Jones v. State, supra, 50 Ala. 161, the Supreme Court held that a forged written order or request for money, purporting to be addressed by a son to his father, is an instrument which is subject to forgery.
'The same view was taken of an application for insurance in Dudley v. State, 10 Ala.App. 130, 64 So. 534.
'To the same effect was the holding in Smith v. State, 22 Ala.App. 590, 118 So. 594, in reviewing an alleged forged release to right or interest to property.
'An examination of 37 C.J.S., Forgery, § 36, p. 55, will disclose a long list of instruments or writing which have been held by the various courts to constitute subjects of forgery.
'In the case of People v. Wilson, 139 Cal.App. 139, 33 P.2d 476, the California Appellate Court held that a sales slip of the kind and character of the one of instant concern was subject to forgery under the applicable statute.
'It is true the opinion does not set out the indictment and it is not there made certain that no extrinsic facts were added. We think, however, that the tenor of the reasoning of the court is to the effect that the averment of extrinsic facts was not required to make the indictment sufficient.
'We find also that the California statute relating to forgery is more specific than our statute. However, specifically sales slips are not included in the catalogue of the kinds of instruments.
'Our statute stipulates in general terms 'or any instrument or writing, being or purporting to be the act of another * * *.'' [Parenthesis supplied.]
This interpretation clearly overlooks or ignores the following well settled rule for guidance in the interpretation of penal statutes:
Scott v. State, 152 Ala. 63, 64, 44 So. 544.
A comparison of §§ 200, 201, 202, 203 and 204, Title 14, Code of 1940, shows a legislative purpose to make the subjects of forgery in the second degree specific and certain and not leave them open to be extended by 'implication or construction to cases within the mischief, if they are not at the same time within the terms of the act, fairly and reasonably interpreted.' 152 Ala. at page 64, 44 So. at page 544. "One who commits an act...
To continue reading
Request your trial
-
Entertainment Ventures, Inc. v. Brewer
...with another well-settled rule that criminal statutes must be given a strict interpretation in favor of defendants. Fuller v. State, 1952, 257 Ala. 502, 60 So.2d 202. Accord: Williams v. United States, 1951, 341 U.S. 97, 101, 71 S.Ct. 576, 95 L.Ed. 774; Smith v. United States, 1959, 360 U.S......
-
Ankrom v. State (Ex parte Ankrom)
...States v. Sepulveda, 115 F.3d 882, 887 n. 12 (11th Cir.1997). See also Ex parte Mutrie, 658 So.2d 347, 349 (Ala.1993) ; Fuller v. State, 257 Ala. 502, 60 So.2d 202 (1952). This due-process requirement is the foundation for the rules of strict construction and lenity applicable to criminal s......
-
McFadden V. State Of Ala. Appeal From Baldwin Circuit Court (CC-05-1848), CR-07-1923
...cert, denied, 265 Ala. 700, 90 So. 2d 238 (1956).'"Penal statutes are to reach no further in meaning than their words. Fuller v. State, 257 Ala. 502, 60 So. 2d 202 (1952).'"One who commits an act which does not come within the words of a criminal statute, according to the general and popula......
-
Mcfadden v. State
...cert. denied, 265 Ala. 700, 90 So.2d 238 (1956). “ ‘Penal statutes are to reach no further in meaning than their words. Fuller v. State, 257 Ala. 502, 60 So.2d 202 (1952). “ ‘One who commits an act which does not come within the words of a criminal statute, according to the general and popu......