Irvin v. State

• Decision Date: 10 October 1967
• Docket Number: 8 Div. 111
• Citation: 203 So.2d 283,44 Ala.App. 101
• Parties: Melvin H. IRVIN v. STATE.
• Court: Alabama Court of Appeals

Page 283

203 So.2d 283

44 Ala.App. 101

Melvin H. IRVIN v. STATE.

8 Div. 111.

Court of Appeals of Alabama.

Oct. 10, 1967.

Melvin H. Irvin, pro se.

MacDonald Gallion, Atty. Gen., and Paul T. Gish, Jr., Asst. Atty. Gen., for the State.

CATES, Judge.

This appeal was originally submitted without oral argument and was assigned to Johnson, J. A majority not concurring in his opinion affirming, the writer has submitted this opinion for the majority of the court.

February 17, 1965, Irvin was charged before a justice of the peace with obtaining 'money and/or merchandise' from 'John C. Hodges D B A A & P Tea Co.' by making uttering or delivering a check on the First National Bank of Athens 'knowing at the time * * * that he had not sufficient funds in or on deposit with said bank for the payment in full of said check.'

This complaint was made returnable to the County Court of Morgan County. On August 3, 1966, Irvin filed (among others) the following written motion:

'Comes the Defendant, Melvin H. Irvin, and avers that he is without Counsel, Indigent and incompetent mentally to handle his own affairs, under thorazine drugs prescribed by a Pscychiatrist, and adjudged 100% Disabled by Doctors for the Veterans Administration.

'Defendant moves this Honorable Court appoint him Counsel.'

The minute entry in the Record (p. 9) shows that preceding arraignment the court overruled this motion. The court reporter shows the following pronouncement from the bench on this occasion:

'* * * All right, this motion is overruled. Number one, this is not the Morgan County Court. Now, ground one of the motion, taking them separately and severally, other than that one ruling there since the Court is not properly addressed, the Court doesn't consider the motion but if the motion were considered--motion number one, comes the defendant and moves the Court appoint adequate counsel and says he is indigent and without funds and unable to provide same and said defendant is disabled. The Court has discussed with the defendant on other occasions and been advised by the defendant that he is a graduate attorney himself although the Court is advised that he is not licensed to practice but he is a graduate attorney. The Court--from his physical appearance, he certainly doesn't appear to be disabled, from conversation he doesn't appear to be mentally disabled and as far as him being indigent, the Court has talked to him and asked him if he had a car. He said he did but aside from that, this is not such a case whereas (sic--wherein) attorneys are appointed. At any rate the Court does not consider that this is required by law to appoint one so that motion would be overruled if the Court was ruling on it.'

After the State rested, the record fails to show that Irvin (1) moved to exclude the State's evidence, or (2) moved for judgment because of a variance between allegata and probata.

Indeed, the record shows the defendant threw himself upon the court for guidance;

'STATE RESTS

'DEFENSE EVIDENCE

'MR. IRVIN: Defendant would like to ask the Court to help him on criminal procedure in Alabama, may I address the Court with questions?

'THE COURT: Let's do it off the record.

'(Thereupon, there was an off the record discussion at the Bench, after which the following proceedings were had and done before the Court and the Jury.)

'MR. IRVIN: Defense calls as its first witness Robert G. Irvin.

'THE COURT: Mr. Irvin, come around please, raise your right hand.

'(Witness sworn.)'

After verdict on August 9, sentencing was continued, the record then showing:

'SEPTEMBER 2, 1966: This being the day that is set for sentencing of the defendant in this case It is considered, ordered and adjudged by the Court that defendant be and is hereby adjudged guilty in accordance with the verdict of the Jury. Defendant is ordered to pay fine of $450.00 together with $100.00 restitution to be paid to A. & P. Company. It is further ordered by the Court that the defendant is taxed with the costs of this prosecution. Upon and in event of failure to pay fine and costs defendant is sentenced to perform hard labor for Morgan County, Alabama for a term of 140 days to pay said fine and to 13 days to pay costs.'

Later, upon conviction, the court found Irvin to be indigent so that his record has come here with a free transcript under Act No. 525, September 16, 1963.

I.

The sole question for decision is whether or not Irvin was charged with 'a serious offense' as that expression appears in § 1 of Act No. 526, September 16, 1963. That section reads:

'Section 1. In all noncapital criminal cases wherein a defendant is charged with a serious offense in the circuit court, or court of like jurisdiction, or courts wherein the law provides a direct appeal to the Supreme Court or Court of Appeals to review such criminal proceedings, the trial judge shall before arraignment ascertain from the accused, or otherwise:

'1. Whether or not defendant has arranged to be represented by and have the assistance of counsel.

'2. Whether or not defendant desires the assistance of counsel.

'3. Whether or not defendant is able financially or otherwise to obtain the assistance of counsel.'

See Martin v. State, 277 Ala. 153, 167 So.2d 912.

The accusation against Irvin not being by way of indictment was of a misdemeanor. Const. 1901, § 8, as amended by Amendment 37; § 4, Act 566, November 19, 1959.

Act 116, June 20, 1951, repealed §§ 232, 233, and 234, T. 14, Code 1940. In place of those Code sections, Act 116 did away with 'intent to defraud' in the bad check law, though the last sentence of § 2 of that Act allowed the defendant to testify as to his intent whilst drawing the check.

Act 566, supra, repealed Act 116. The present enactment restored 'intent to defraud' as an element. However, Section 2 provides:

'As against the maker, or drawer thereof, the making, drawing, uttering, or delivering of a check, draft, or order, payment of which is refused by the drawee, shall be prima facie evidence of intent to defraud and of knowledge of insufficient funds in, or on deposit with, such bank, person, firm or corporation. Provided, proof of payment of the amount due the holder of the check, draft, or order by the drawer, within ten days after notice that such check, draft, or order was not paid by the drawee, shall be sufficient to overcome the presumption of prima facie evidence provided herein.'

No provision in Act 566 removes the incompetency of the defendant to testify as to his contemporaneous intent on making the offending instrument. Under Goolsby v. State, 213 Ala. 351, 104 So. 901, this omission is a denial of due process. See Bailey v. State of Alabama, 219 U.S. 219, 31 S.Ct. 145, 55 L.Ed. 191.

Constitution 1901, § 6, gives the accused the 'right to be heard by himself and counsel, or either.' 'Counsel' in this context has well nigh uniformly been held to mean a duly licensed and qualified lawyer of the state of trial. ¹ Code 1940, T. 46, § 42.

A defendant may knowlingly waive this right of locally licensed counsel. Breier v. Gladden, D.C., 229 F.Supp. 823. However, where the court, under Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799, must appoint counsel, the appointment of an unlicensed attorney will not do. People v. Cox, 12 Ill.2d 265, 146 N.E.2d 19, 68 A.L.R.2d 1134; Martinez v. State, 167 Tex.Cr.R. 97, 318 S.W.2d 66; McKinzie v. Ellis, 5 Cir., 287 F.2d 549. See, however, Hill v. State, Tex.Cr.App., 393 S.W.2d 901, as to effect of failure to pay bar dues.

Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799, overruled the special circumstance rule of Betts v. Brady, 316 U.S. 455, 62 S.Ct. 1252, 86 L.Ed. 1595. In Gideon's case the court set aside a conviction without counsel of breaking and entering, a noncapital felony. Thus, Powell v. State of Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158, was extended.

In the summing up in the Gideon epitaph for Betts v. Brady, supra, we find expressions broader than mere references to felonies:

1) '* * * any person Haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him.'

2) '* * * the widespread belief that lawyers in Criminal courts are necessities, not luxuries.'

3) 'This noble ideal cannot be realized if the poor man charged with Crime has to face his accusers without a lawyer to assist him.'--372 U.S. at 344, 83 S.Ct. at 796. (Italics added.)

In 1948 in Uveges v. Commonwealty of Pennsylvania, 335 U.S. 437, 69 S.Ct. 184, 93 L.Ed. 127, Mr. Justice Reed, in a bifurcate ratio decidendi, referred to persons charged with serious crimes. Uveges was indicted for four separate burglaries. This expression 'serious crimes' was quoted by Clark, J., concurring in Gideon, supra, 372 U.S. at 347, 83 S.Ct. 792.

In Gideon, Mr. Justice Harlan alludes to the 'complexity' of legal questions in noncapital cases.

It is this background that casts some light on our Legislature's choice of words, 'serious crime,' rather than the more conventional terms, 'felony' and 'misdemeanor.'

So it is that here we must do more than construe Gideon: ² we have the statute to interpret.

First, we assume, without need for deciding, that serious crimes embrace all felonies and treasons.

Second, we do not assume that all public offenses are, ipse dixit, serious crimes. ³

Our Code, much as other legal authorities, uses the following system of classification found in Title 1:

' § 5. A public offense is an act or omission forbidden by law, and punishable as provided in this Code.

' § 6. Acts or omissions to which a pecuniary penalty is attached, recoverable by action by a person for his own use, or for the use, in whole or in part, of the state, or of a county or corporation, are not public offenses within the meaning of this Code.

' § 7. A felony within the meaning of this Code, is a public offense which may be punished by death, or by imprisonment in the penitentiary; all other public offenses...