Huddleston v. State

• Decision Date: 12 August 1952
• Docket Number: 5 Div. 331
• Citation: Huddleston v. State, 37 Ala.App. 57, 64 So.2d 90 (Ala. App. 1952)
• Parties: HUDDLESTON v. STATE.
• Court: Alabama Court of Appeals

Page 90

64 So.2d 90

37 Ala.App. 57

HUDDLESTON v. STATE.

5 Div. 331.

Court of Appeals of Alabama.

Aug. 12, 1952.

Rehearing Granted Jan. 6, 1953.

Rehearing Denied Feb. 17, 1953.

G. C. Walker, Clanton, and Holley, Milner & Holley, Wetumpka, for appellant.

Si Garrett, Atty. Gen., and Bernard F. Sykes, Asst. Atty., Gen., for the State.

PRICE, Judge.

This is an appeal from a conviction upon an indictment, which charges appellant with the forgery and uttering of the endorsement of Dalton Connell to a county warrant.

Count one of the indictment, omitting the formal parts, charged that appellant, 'with intent to injure or defraud, did falsely make, alter, forge or counterfeit the endorsement of Dalton Connell to an instrument in writing, in words and figures substantially as follows:

'First National Bank of Clanton

Clanton, Alabama

Pay this warrant, when properly endorsed, from the fund of Chilton County, Alabama, designated below.

W. M. Polk

Treasurer, Chilton County, Alabama. By _____ Asst.

Atty. in Fact.

Gasoline Fund

Pay

To Dalton Connell

Or

Order

State of Alabama No. 3315

County Commission of Chilton County

Clanton, Ala.,

$293.57

July 12, 1948

To the Treasurer,

Chilton County, Alabama

The sum of Two hundred ninety-three & 57/100 ...-... Dollars

for _____

PO No. 1355-1354

out of any moneys, not otherwise appropriated in Gasoline Fund of said County

W. L. Parrish

President, County Commission of Chilton Co., Alabama.

with the following endorsement on the back thereof: Dalton Connell.'

Count two of the indictment carries the same charge as the first, with the alternative averment that appellant 'with intent to injure or defraud did utter and publish as true the falsely made, altered, forged or counterfeited endorsement of Dalton Connell, the payee of the above set out instrument in writing, knowing the same to be so falsely made, altered, forged or counterfeited.'

The appellant's motion to quash the indictment based upon the erroneous minute entry of the Clerk of the court, and because less than fifty persons were summoned as veniremen, was overruled by the court. These questions were decided adversely to appellant's contention in the case of Wyatt v. State, Ala.App., 57 So.2d 350.

Defendant's contention that the warrant was not drawn or signed in the manner prescribed by law was also decided adversely to appellant in the case of Wyatt v. State, supra.

The indictment follows the form laid down for forgery in the second degree insofar as that form covers forgery of an endorsement. Title 15, Section 259, form 64.

There is no form set out for the latter part of Section 200, Title 14, for uttering and publishing as true an endorsement as set out in the indictment, and in drawing this latter part the Solicitor substantially followed the language of the statute, and in this there was no error. Harris v. State, 32 Ala.App. 519, 27 So.2d 794; Sec. 230, Title 15, Code 1940, et seq.

The evidence for the State tended to show that two claims, dated July 1, 1948, were filed with Mrs. Delene B. Wyatt, Clerk of the Court of County Commissioners of Chilton County for payment of a total of $293.57 for lumber. These claims, introduced in evidence as defendant's Exhibit No. 2-0, were filed in the name of Dalton Connell. A purported affidavit bearing the name Dalton Connell, attesting the correctness of the claim, and sworn to before Mrs. Wyatt, supported the claim. These claims were regularly presented to the Court of County Commissioners of Chilton County and allowed by that body, and a warrant drawn on Chilton County, bearing the number 3315, and payable to Dalton Connell. This warrant was purportedly endorsed by Dalton Connell. It also bears the endorsement of W. E. Huddleston.

Dalton Connell testified that he had never sold any lumber to Chilton County; that he never authorized anybody to file a claim in his name with the county; that he did not sign his name on the back of the warrant, nor did he authorize anyone to endorse it for him. On cross examination he testified he had worked for D. C. Littlefield during 1948 and that Littlefield was selling lumber to Chilton County.

The evidence for defendant was to the effect that W. E. Huddleston was the agent for the Texas Company. D. C. Littlefield sold lumber to Chilton County and since his means were limited he would first go to Mrs. Wyatt, Clerk of the Commissioner's Court, also a Notary Public, and present his claim and sign it before her. Thereupon he would sell the claim to this defendant, and the defendant would issue his personal check in payment therefor, after deducting a discount which usually amounted to 6 or 8 per cent of the amount of the check on a 30 day basis, also deducting any amount due defendant for gasoline and lubricants. The evidence tended to show these parties had operated in this way for several years. The defendant would then take the claim to Mrs. Wyatt and would sign a printed form of claim against the county in blank. Mrs. Wyatt would later fill out the items above the defendant's signature. In due course a warrant, in the form used, would be mailed to the defendant, who would cash it.

Defendant contended Littlefield brought to him a claim against the county, already sworn to by Dalton Connell before Mrs. Wyatt, and that he paid Littlefield for the claim, just as he had for the others; that he took this claim to Mrs. Wyatt, signing his name to another claim in blank, delivering to her the invoice for lumber, and that in due course the warrant came to him in the mail and that he endorsed Connell's name on the back of said warrant, together with his own name and got the money. He did not know Dalton Connell and had never seen him.

Defendant testified on cross examination that he had bought claims from no one but Littlefield. That he had taken five, six or seven claims from Littlefield made payable to Dalton Connell. He further testified that several times the warrant was marked for tires and tubes, although he had been out of the tire business since 1946, and had sold no tires or tubes to the county. When this first occurred he called Mrs. Wyatt's attention to the fact that he had sold no tires to the county and she stated to him the County Commissioners said they were buying too much lumber and it would be all right to change some of the warrants so as to read for tires.

Defendant introduced many witnesses who testified to his previous good character.

C. R. Keener, State examiner of public accounts, stated that in his examination of the records of the Commissioner's Court he would match the warrants against the claims; that he took warrant number 3315 and matched it against the two claims. He was then asked the question, 'With reference to those two things that you found did you see anything wrong on the face of it?' On objection by the defendant the court stated: 'He may state what he observed.' The Solicitor then asked, 'What did you observe? Was that regular or irregular up to there?' On further objection by defendant, the court stated: 'He may state what he observed and what he saw and his method and the way he went about it.' The witness then stated, 'We observed it very close and there was no evidence of any delivery----' Defendant objected and moved to exclude this statement. The court overruled the objection and defendant reserved an exception. Thereupon the witness stated further 'There was no evidence attached to the claim that anything had been delivered.'

The defendant's motion to exclude this statement, on the ground it was not the best evidence and was a conclusion of the witness, was overruled by the court and defendant reserved an exception.

Defendant insists that since defendant's main contention was that there was no intent on his part to defraud, the statements were conclusions of the witness on the vital point as to whether or not any lumber was received by the county, and that the court committed reversible error in overruling the motion to exclude.

The defendant's motion was properly overruled. This was not a conclusion, but the statement of a fact based on the witness' examination of the records of the Commissioner's Court.

At the conclusion of the testimony defendant requested the general affirmative charge as to both counts of the indictment, predicated on the grounds of a variance between the indictment and the proof:

(1) That the indictment alleged only the endorsement of Dalton Connell, whereas the proof shows that the instrument bears the endorsement of both Dalton Connell and W. E. Huddleston.

(2) That the indictment alleges the instrument bore the signature of W. M. Polk at the time the alleged endorsement was made, whereas the proof shows that it is uncertain whether the signature of W. M. Polk was placed on the instrument before or after the endorsement of Connell was placed on the instrument.

(3) That the indictment alleges that the name Dalton Connell was endorsed on the back of the alleged instrument, whereas, the proof shows the name actually endorsed was Dalton Cornell.

(4) It is not shown by the evidence that the alleged offense was committed in Chilton County, Alabama.

As to the first ground, the subsequent endorsement of his own name on the warrant had no bearing on the charge against defendant and such variance is immaterial. Brown v. State, 30 Ala.App. 339, 7 So.2d 24; 37 C.J.S., Forgery, § 68.

(2) Defendant endorsed the warrant without qualification, thereby warranting the instrument to be genuine in all respects that it purports to be and is not now in position to question the validity of the warrant. Wyatt v. State, Ala.App., 57 So.2d 366.

(3) On cross examination of C. D. Brooks, of the State Department of Toxicology, who qualified as a handwriting expert, after testifying the endorsement of the name of Dalton Connell on warrant No. 3315 was in the handwriting of the same person who had written certain standards, which were admittedly written by defendant, read the...