Harrison v. State
| Decision Date | 27 November 1984 |
| Docket Number | 1 Div. 772 |
| Citation | 465 So.2d 475 |
| Parties | Carl Milton HARRISON, Jr. v. STATE. |
| Court | Alabama Court of Criminal Appeals |
J. Michael Newton, Mobile, for appellant.
Charles A. Graddick, Atty. Gen., and James B. Prude, Asst. Atty. Gen., for appellee.
Carl M. Harrison, Jr., having been convicted of the offense of theft in the second degree and sentenced to five years' imprisonment, takes this appeal, raising several legal issues.
He contends first that the prosecution of this case was employed as a means for collecting a debt. The appellant gave a check to Carson's Furniture, Inc. for $678 in payment for certain chairs, and directed its employees to deliver the chairs to a doctor's office. The check was issued on a numbered account in a Mobile bank. As it developed, the account had been closed for quite some time. Carson's Furniture, Inc., was paid shortly after the check bounced by the doctor who received the chairs. The owner of Carson's testified at trial that they did not have any further interest in pursuing Mr. Harrison. It is true that our courts have "taken a dim view" of the threat of prosecution to collect civil debts and that our constitution provides "that no person shall be imprisoned for a debt." Art. I, Sec. 20, Constitution of Alabama. Nonetheless, almost every criminal act also generates civil liability. To refuse to enforce criminal laws with vigor because of civil consequences to the parties is unthinkable. The appellant in this case was not charged with the offense of issuing a worthless check, but rather with theft in the second degree. By the time this case got under way, the doctor had paid for the chairs and the individuals involved were not "out-of-pocket". These facts do not in any way lessen or diminish the criminality of the act involved. We find as a matter of fact that the prosecution in this case was not employed as a means for collecting a civil debt and find no merit in appellant's contention to the contrary.
Appellant next contends that he was charged under a void indictment. The indictment, returned by the grand jury of Mobile County, August of 1983, states "Carl Milton Harrison, Jr. whose name is to the Grand Jury otherwise unknown than as stated, did knowingly obtain or exert by deception, unauthorized control over chairs, the property of Carson's Furniture, Incorporated, of the approximate aggregate value of six hundred seventy eight and 40/100 dollars ($678.40), with the intent to deprive the owner of said property, in violation of § 13A-8-4 of the Code of Alabama, ..."
Appellant's position is that the control exercised over the chairs was not "unauthorized" and that therefore the indictment will not support a judgment.
We perceive, first of all, that the indictment satisfactorily performs the office of apprising the accused with reasonable certainty of the nature of the charge against him. The facts constituting the offense are stated in such a way that a person of ordinary understanding can understand the meaning intended to be conveyed. Appellant specifically contends that the element of "unauthorized control" was not proved since the chairs were voluntarily delivered by Carson's Furniture, Inc. Section 13A-8-1(7), Code of Alabama 1975, states:
"Obtains or exerts control or obtains or exerts unauthorized control ... includes but is not necessarily limited to conduct heretofore defined or known as ... obtaining property by false pretenses."
Where possession of property is obtained by fraud and the owner intends to part with the ownership and possession, then the offense committed is that of obtaining property by false pretenses. St. Paul Fire & Marine Insurance Co. v. Veal, 377 So.2d 962 (Ala.1979); Jones v. State, 56 Ala.App. 444, 322 So.2d 735 (Ala.1975). Obtaining property by false pretenses is proscribed under our new criminal code by the theft statute. Deep v. State, 414 So.2d 141 (Ala.Crim.App.1982). What this statute and these cases say to us is that the control obtained over property through deception is still unauthorized control under the new criminal code. This unauthorized control might be control with the consent of the owner, where that consent is secured by deception. Consequently, the indictment is not faulty in this respect. We note further in passing that the term "unauthorized control" is unnecessary and might be treated as surplusage and that this challenge to the indictment was not made by the appellant to the trial court so that the trial court had no opportunity to act on it.
Appellant next contends that he cannot be convicted of anything regarding this theft by deception because the check he gave on a non-existent bank account was post-dated by a year. It is true that the check given on February 10, 1983, was dated February 10, 1984, and that the person taking the check did not observe this discrepancy at the time the check was tentatively accepted in payment. Appellant contends that since he gave a post-dated check, he cannot be convicted of theft by deception. His logic is that since the check was not due and payable for a year, it could not be said, until that year expired, whether a bank account bearing that name and number would have the amount of money in it to cover that check, citing Code of Alabama 1975, § 7-3-114. The issue in this case, however, is not whether or not the check was a negotiable instrument, but whether the check was written with the intent to deceive the owner into parting with his property. This bank account had been closed for over a year. Appellant had to know that the check would be dishonored whenever it was presented. Appellant had no open account with this bank. Post-dating the check employed as part of a scheme to defraud does not convert it into a ticket to freedom.
Appellant further contends that error was committed during the closing remarks of the prosecutor to the jury. The language objected to is:
Counsel for the defense objected. The objection was sustained.
Counsel contends that there was no evidence in the record on which to base this argument. However, it does appear from the record that the cashier from the bank testified that the appellant's account had been closed for writing a lot of bad checks. The statement of the prosecutor therefore was based on testimony which was in evidence. The objection of counsel was sustained and it appears that no mistrial was sought so that there is no adverse ruling, in any event, upon which to predicate error.
Appellant contends that the Habitual Felony Offenders Act should not have been applied in his case. The state moved to invoke application of the Act and introduced a ,...
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McCord v. State
...Ala.App. 444, 322 So.2d 735 (Ala.Cr.App.), cert. denied, 295 Ala. 408, 322 So.2d 741 (Ala.1975), and false pretenses, Harrison v. State, 465 So.2d 475 (Ala.Cr.App.1984), or breach of trust which distinguished embezzlement, Adams v. State, 43 Ala.App. 281, 189 So.2d 354 (Ala.App), cert. deni......
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...it met that burden and established a prima facie case by the introduction of the certified copy of the minute entry. Harrison v. State, 465 So.2d 475 (Ala.Crim.App.1984); Tate v. State, 435 So.2d 190 (Ala.Crim.App.1983); Douglas v. State, 406 So.2d 1051 (Ala.Crim.App.), cert. denied, 406 So......
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...To refuse to enforce criminal laws with vigor, because of civil consequences to the parties is unthinkable." Harrison v. State, 465 So.2d 475, 476 (Ala.Cr.App.1984) (wherein the appellant was charged with theft and although he paid for his "bounced" check, the criminality of the act was not......
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State v. Maddox
...case presents an issue of civil liability—not criminal conduct. We quote with approval the words of this court in Harrison v. State, 465 So.2d 475, 476 (Ala.Crim.App.1984): "It is true that our courts have `taken a dim view' of the threat of prosecution to collect civil debts and that our c......