Littlefield v. State
| Decision Date | 29 January 1952 |
| Docket Number | 5 Div. 329 |
| Citation | 36 Ala.App. 507,63 So.2d 565 |
| Parties | LITTLEFIELD v. STATE. |
| Court | Alabama Court of Appeals |
Karl C. Harrison and Wales W. Wallace, Jr., Columbiana, for appellant.
Si Garrett, Atty. Gen., and Bernard F. Sykes, Asst. Atty. Gen., for the State.
The following charges were refused to defendant:
'16. The Court charges the jury that the burden of proof is on the State of Alabama to prove beyond all reasonable doubt and to a moral certainty that the defendant failed to deliver the lumber listed in the claim introduced into evidence.
'17. The Court charges the jury that if you find after a consideration of all the evidence that Mrs. Delene Wyatt had authority to sign W. L. Parrish's name to county warrants and you further find from the evidence that Mrs. Wyatt knew that the defendant was selling lumber in another's name, you cannot convict the defendant.
The indictment against this appellant contained five counts charging respectively either forgery or obtaining a warrant by false pretenses.
Appellant was found guilty by a jury under count 3 of the indictment which charged that he 'did falsely pretend to the Court of County Commissioners of Chilton County, Alabama, with intent to injure or defraud Chilton County, Alabama, that Robert Connell had sold or furnished to Chilton County, Alabama, or that Chilton County, Alabama, was indebted to Robert Connell for, 2392 feet or board feet of lumber, in the amount or value of $83.72, and by means of such false pretenses obtained from Chilton County, Alabama, a check or warrant drawn on the Gasoline Fund of Chilton County, Alabama, dated May 10, 1948, in the amount of $83.72, and of the value of $83.72, and made payable to the order of Robert Connell.'
His motion for a new trial being overruled appellant perfected his appeal to this court.
Motion to quash the indictment was filed, and by the court overruled. The substantial grounds of this motion were that the indictment was not in fact signed by the foreman of the grand jury. This identical question was considered by us and concluded adversely to the appellant's claims in the recent case of Wyatt v. State, Ala.App., 57 So.2d 350, certiorari denied Ala.Sup., 57 So.2d 366.
Appellant also filed motions for a change of venue and for a continuance. These motions were based on the premise that appellant could not get a fair trial in Chilton County because of newspaper publicity growing out of the State examiners report concerning certain officials of Chilton County and their dealings with other persons and their handling of county affairs, and also the publicity resulting from the trials of one or more of these officials.
In support of the motions the appellant introduced evidence tending to establish the assertions set forth in said motions. In rebuttal the State offered evidence tending to show that the appellant could receive a fair trial in Chilton County.
The matter of granting a change of venue, or of continuance, addresses itself to the sound discretion of the trial court. State v. Ware, 10 Ala. 814. Newspaper publicity does not necessarily constitute grounds for either a change of venue or a continuance. Collins v. State, 234 Ala. 197, 174 So. 296.
In view of the evidence presented by the State in opposition to the appellant's presentation we find no basis for saying that the trial court's ruling denying the motions was not justified. No error therefore resulted from the rulings on these motions for a change of venue and for a continuance.
The evidence presented by the State tended to show that the appellant filed a claim with Mrs. Delene B. Wyatt, Clerk of the Court of County Commissioners of Chilton County, for payment of $83.72 for certain described lumber. This claim, numbered 3106, was filed in the name of Robert Connell.
A purported affidavit bearing the name Robert Connell, attesting the correctness of the claim, and sworn to before Mrs. Wyatt, supported the claim.
This claim was regularly presented to the Court of County Commissioners of Chilton County and allowed by that body.
Thereafter a warrant on Chilton County, bearing the number 3106, and payable to Robert Connell was issued.
This warrant was purportedly endorsed by Robert Connell. It also bears the endorsement of D. C. Littlefield, this appellant.
Testimony was introduced directed toward showing that these endorsements were in the handwriting of the appellant. There was also received in evidence some twenty writings of the name 'Robert Connell,' written by the appellant on a sheet of paper. This was before the jury for comparison.
Robert Connell testified that he knew the appellant, having worked for him sometime in 1943. Connell further testified that he had never sold any lumber to Chilton County; had never authorized any one to file a claim in his name with the county; he had never seen the warrant issued in his name, and had never authorized his endorsement thereon, and in fact was ignorant of the entire transaction.
The appellant presented no evidence in the trial below.
During her examination Mrs. Wyatt testified that she signed the name of 'W. L. Parrish, President, County Commission of Chilton County' to the warrant in question.
Counsel for appellant argue the since the Court of County Commissioners of Chilton County is a court of record, such authority could only be shown through the records of said court, and since such evidence had not been produced the warrant was void and appellant had not obtained anything of value.
However it also appears from the record that Mrs. Wyatt testified without objection that she had been Clerk of the Court of County Commissioners since 1923, and that a part of her duty as such clerk was to draw the county warrants after the payment of claims against the county had been authorized by the Commission. In the absence of a showing otherwise the presumption is that public officials have properly discharged their duties. Since it was Mrs. Wyatt's duty to draw the warrants and sign the presiding officer's name thereto, the procedure followed in issuing all of the county's warrants, we must presume, in the absence of a showing otherwise, that the Commission properly delegated this duty to Mrs. Wyatt.
It also further appears that the appellant endorsed this warrant without qualification. By such act he warranted that the instrument was genuine in all respects it purports to be, and that all prior parties had capacity to contract. Secs. 67 (1, 2), and 68, Title 39, Code of Alabama 1940. Wyatt v. State, supra. Appellant is not now, for the first time, in position to question the validity of this warrant on the grounds he seeks to question it on.
The warrant in question bears in its upper left hand corner a check drawn on the First National Bank of Clanton, Clanton, Alabama, in the following terms:
'Pay this warrant when properly endorsed, from the fund of Chilton County, Alabama, designated below.
'W. M. Polk
________
'Treasurer, Chilton County, Ala.'
The fund designated out of which to pay the warrant was the Gasoline Fund of said county.
Appellant now contends that the State failed to show that Mr. Polk actually signed this check prior to its delivery to appellant, and therefore the warrant was of no value at the time it was obtained by appellant.
What we have said above as to the effect of appellant's unqualified endorsement of the instrument containing the check is equally decisive of this point.
Counsel for appellant further argue that since the State's evidence failed to show that the lumber for which the claim was filed and warrant delivered was not delivered to the county that the State has failed to make its case. Mrs. Wyatt's testimony in this regard was that she did not know whether the lumber mentioned in the claim was delivered or not; that at the time the claim was filed the only evidence she had that lumber had been delivered was the appellant's statement that he had delivered it. The claim was read out in the name of Robert Connell and authorized in that name by the Commission.
There was also evidence before the jury from which it could reasonably infer that this appellant had forged the name of Robert Connell to the claim for the lumber; had forged Robert Connell's name to the affidavit supporting the claim; and had forged Robert Connell's name to the warrant issued on the claim. Connell testified that he had not delivered any lumber, nor filed any claim, nor endorsed the warrant. This evidence is we think amply sufficient to support the offense charged in the indictment, the pertinent portions of which we have set out above. Particularly is this true in the absence of any evidence by the defense tending to show that the lumber was actually delivered to the county, the facts presented by the State being such as to reasonably permit the jury to conclude that no lumber was delivered.
During the cross examination of Mr. Polk he testified that he was the Treasurer of Chilton County, and as such had signed the check in the upper left hand corner of the warrant in question. Sometimes he would sign such instruments at the bank, but more often in 'the office.' He could not say at which place he signed the warrant in question, but in any event the warrant was not marked 'paid' when he signed it.
On redirect examination Mr. Polk testified that 'more often' he signed the warrants before they went to the bank.
He was then asked 'What would be the occasion for your going to the bank?'
The appellant's objection to this question on the ground that it called for a conclusion, and was hearsay, was overruled by the court.
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