McDavid v. State
| Decision Date | 31 May 1983 |
| Docket Number | 6 Div. 48 |
| Parties | Ples Henry McDAVID a/k/a Ples Henry McDavid Woods v. STATE. |
| Court | Alabama Court of Criminal Appeals |
William H. Manasco, Carbon Hill, for appellant.
Charles A. Graddick, Atty. Gen., and J. Anthony McLain and James F. Hampton, Sp. Asst. Attys. Gen., for appellee.
The defendant was indicted and convicted of the fraudulent use of a credit card in violation of Section 13A-9-14(b), Code of Alabama 1975. He was sentenced as an habitual offender to twenty-five years' imprisonment. Four issues are presented on appeal.
The defendant contends that the statute under which he was indicted and convicted is unconstitutionally vague and indefinite because "it defines an attempt to violate the article and the completed commission as one and the same fact", and is therefore in conflict with Section 13A-4-2 defining attempts.
In pertinent part, Section 13A-9-14(b) provides:
The fraudulent use of a credit card (of using or attempting to use) is a Class C felony. Section 13A-9-14(e).
Section 13A-4-2(a) defines an attempt: "A person is guilty of an attempt to commit a crime if, with the intent to commit a specific offense, he does any overt act towards the commission of such offense." An attempt may be a felony or a misdemeanor and is graded at one level below that for the substantive crime committed. Section 13A-4-2(d). An attempt to commit a Class C felony would ordinarily constitute a Class A misdemeanor. Section 13A-4-2(d)(4).
A statute making an offense both a felony and a misdemeanor would be unconstitutional and in violation of Ala. Const. Art. I, Section 6, giving the accused the right in all criminal prosecutions to demand the nature and cause of the accusation. Kyles v. State, 358 So.2d 797, 799 (Ala.Cr.App.), cert. denied, Ex parte Kyles, 358 So.2d 799 (Ala.1978); State v. Hall, 24 Ala.App. 336, 337, 134 So. 898 (1931).
Applying clear and simple rules of statutory construction, we find no conflict between the statute defining the offense of fraudulent use of a credit card and the statute defining attempts. Statutes adopted at the same time and constituting one system of law "will be construed in pari materia so as to effectuate the legislative intent, giving each, where it is reasonably possible to do so, a field of operation." Coan v. State, 224 Ala. 584, 585, 141 So. 263 (1932). City of Birmingham v. Southern Express Co., 164 Ala. 529, 538, 51 So. 159 (1909). A particular statute will govern a general statute. Grimes v. State, 402 So.2d 1094, 1096-97 (Ala.Cr.App.1981). "General statutory provisions yield to specific provisions where conflicts exist between the two." Chesteen v. State, 365 So.2d 102, 107 (Ala.Cr.App.), cert. quashed, 365 So.2d 108 (Ala.1978).
"A statute making it a crime to attempt to commit an offense is intended to be of a general nature, punishing all attempts to commit any crime, and it has been held to apply only where there is no other specific provision of law, punishing such attempt."
22 C.J.S. Criminal Law, Section 74, p. 227 (1961).
Applying these principles, we find that Section 13A-9-14 makes both the actual commission and the attempted commission of the crime defined in that section a Class C felony.
The fact that the statute punishes both the attempt and commission of the crime as a Class C felony does not render it unconstitutional. The legislature has the power to define crime and fix the punishment for the violation of its criminal statutes. Woco Pep Co. of Montgomery v. City of Montgomery, 213 Ala. 452, 454, 105 So. 214 (1925); State v. Campbell, 21 Ala.App. 303, 304, 107 So. 788 (1926). As noted in the Commentary to Section 13A-9-14, this special statute "is justified because of the unusual nature of the type of theft."
Since Section 13A-9-14 makes the fraudulent use of a credit card a felony, the offense need not have been committed in the officer's presence before he could make an arrest without a warrant. Alabama Code Section 15-10-3 (1975).
The City of Sumiton is located in Walker County. A Sumiton police officer arrested the defendant in Jefferson County. However, the officer testified that the arrest was still made within the police jurisdiction of Sumiton. Under Section 11-40-10, Code of Alabama 1975, the police jurisdiction of cities having less than 6,000 inhabitants "shall extend also into the adjoining territory within a mile and a half of the corporate limits of such city or town."
The defendant argues that some form of "testimonial verification" was necessary to properly introduce at the sentencing hearing the certified copies of the minute entries of the defendant's prior convictions.
Under Section 12-21-35(a), Code of Alabama 1975, prior convictions are properly proved through the use of certified copies of the minute entries showing the prior convictions. The purpose of this statute admitting certified copies of public records as prima facie evidence is "to avoid the necessity of removing the original records from their proper custody and of requiring the attendance of public officers and employees as witnesses in the courts." Lidge v. State, 419 So.2d 610, 615-16 (Ala.Cr.App.), cert. denied, Ex parte Lidge, 419 So.2d 616 (Ala.1982).
When the trial judge asked the defendant if he had anything to say before the sentence was pronounced, the defendant responded:
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Crews v. State, CR–14–0590.
...case-action-summary sheet, because they are the best evidence of the validity of the prior felony convictions. See McDavid v. State, 439 So.2d 750, 752 (Ala.Crim.App.1983) ; Wright v. State, 709 So.2d 1318, 1320 (Ala.Crim.App.1997). The State failed to present a certified copy, case-action ......
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Harris v. State
...and it has been held to apply only where there is no other specific provision of law, punishing such attempt.' Id. [ McDavid v. State, 439 So.2d 750] at 752 [Ala.Cr.App.1983], quoting from 22 C.J.S. Criminal Law, Section 74, p. 227 Mack v. State, 536 So.2d 971, 972-73 (Ala.Cr.App.1988). The......
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Pool v. State
...control general provisions on general subjects." Baldwin County v. Jenkins, 494 So.2d 584, 588 (Ala.1986). Accord, McDavid v. State, 439 So.2d 750, 751-52 (Ala.Cr.App.1983). Because § 13-12-212 is a general provision, §§ 13A-12-213 and -214, as specific provisions, would control and appella......
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Whirley v. State, 3 Div. 25
...I Alabama courts have long held that a statute making an offense both a felony and a misdemeanor is unconstitutional. McDavid v. State, 439 So.2d 750, 751 (Ala.Cr.App.1983); Kyles v. State, 358 So.2d 797, 799 (Ala.Cr.App.), cert. denied, 358 So.2d 799 (Ala.1978); State v. Hall, 24 Ala.App. ......