McDaniel v. State
Decision Date | 19 August 1924 |
Docket Number | 6 Div. 459 |
Citation | 102 So. 788,20 Ala.App. 407 |
Parties | McDANIEL v. STATE. |
Court | Alabama Court of Appeals |
Rehearing Denied Dec. 16, 1924
Appeal from Circuit Court, Jefferson County; William E. Fort, Judge.
Joe McDaniel was convicted of forgery in the second degree, and he appeals. Reversed and remanded on rehearing.
Certiorari denied by Supreme Court in Ex parte State (McDaniel v State) 102 So. 791.
Surplusage does not vitiate indictment otherwise good.
The indictment upon which the defendant was tried is as follows:
These charges were refused to defendant:
J.B. Ivey, of Birmingham, and Huey & Welch, of Bessemer, for appellant.
Harwell G. Davis, Atty. Gen., Lamar Field, Asst. Atty. Gen., Jim Davis, Sol., and Willard Drake, Asst. Sol., both of Birmingham, for the State.
The appellant was convicted of forgery in the second degree. The indictment follows the form laid down for forgery in the second degree in so far as that form covers section 6910, Code 1907, except that it contains the following additional words, "and the grand jury further charge that said alteration, forgery or counterfeiting consisted in signing the name of J.R. Upshaw where the same appears on the face of said instrument." Form 62, p. 670, Code 1907. There is no form in the Code for the latter part of section 6910, for uttering and publishing as true a forged check as set out in the indictment, and in drawing this part of the indictment the form for forgery in the first degree (Form 61, p. 670, Code 1907) was followed. It was not necessary to specifically aver in the indictment that the forgery consisted in signing the name of J.R. Upshaw to the check. Unnecessary averments in an indictment do not impair its validity. The most that can result from them is to hold the prosecution to proof of them. Aaron v. State, 39 Ala. 75; Johnson v. State, 35 Ala. 363.
Section 7132, Code 1907, provides:
"The manner of stating the act constituting the offense as set forth in the forms given in article 7 of this chapter is sufficient in all cases in which the forms there given are applicable; in other cases forms may be used as near similar as the nature of the case and the rules prescribed in this chapter will permit."
When the Legislature declares what form of indictment is sufficient, such legislative direction is controlling, and an indictment pursuing such form is sufficient. Bailey v. State, 99 Ala. 143, 13 So. 566; Smith v. State, 63 Ala. 55; Wilson v. State, 61 Ala. 151. Indictments in the form prescribed by the Code are sufficient. 1 Mayf.Dig. § 11, p. 422. Analogous forms may be used. Brantley v. State, 91 Ala. 47, 8 So. 816; Harvey v. State, 15 Ala.App. 311, 73 So. 200.
Offenses of the same character, subject to the same punishment, may in the same count of an indictment be charged in the alternative. Section 7151, Code 1907. Under this statute a defendant may be charged with forgery and uttering a forged check in the same count. Johnson v. State, 35 Ala. 370. An indictment substantially the same as in the instant case was held good in Jennings v. State, 17 Ala.App. 640, 88 So. 187, and in Davis v. State, 165 Ala. 93, 51 So. 239. That the check set out in the indictment is not a true copy of the one alleged to have been forged, because the forged check had the word "insured" indented upon it with a protectograph, and had underneath the blank space for signature of the drawer the words "4 per cent. on savings" and had on the back thereof "W.M. Arnold," and that such words were omitted from the indictment was not good ground of demurrer.
The demurrer to the indictment was properly overruled. Numerous exceptions were reserved to rulings of the court on the admission of evidence offered by the state. In many instances no motion was made to exclude the answer, hence, in those cases, no question is presented for review. Rector v. State, 11 Ala.App. 333, 66 So. 857; Johnson v. State, 4 Ala.App. 62, 58 So. 754.
It was competent for the state on cross-examination to ask defendant, who testified in his own behalf, as to his conviction for crime, for the purpose of affecting his credibility as a witness. Section 4009, Code 1907; Wells v. State, 131 Ala. 48, 31 So. 572.
We have carefully examined and considered the evidence and the exceptions reserved by the defendant, and find no merit in the exceptions.
There was a conflict in the evidence, and it was sufficient to justify a conviction by the jury if they believed therefrom beyond a...
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Tomlin v. State
...35 Ala. 363 (1860); Lindsay v. State, 19 Ala. 560 (1851). Surplusage does not vitiate an indictment otherwise good. McDaniel v. State, 20 Ala.App. 407, 102 So. 788, cert. denied, 212 Ala. 415, 102 So. 791 (1924). As long as the remaining portions of an indictment validly charge a crime, the......
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...in an indictment do not impair its validity, although they may hold the prosecution to the proof of them. McDaniel v. State, 20 Ala.App. 407, 410, 102 So. 788 (1924), cert. denied, 212 Ala. 415, 102 So. 791 (1925); Fitzgerald v. State, 53 Ala.App. 663, 303 So.2d 162 As long as the remaining......
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