Shouse v. State

• Decision Date: 28 October 1952
• Docket Number: 6 Div. 462
• Citation: Shouse v. State, 36 Ala.App. 614, 63 So.2d 722 (Ala. App. 1952)
• Parties: SHOUSE v. STATE.
• Court: Alabama Court of Appeals

Page 722

63 So.2d 722

36 Ala.App. 614

SHOUSE v.STATE.

6 Div. 462.

Court of Appeals of Alabama.

Oct. 28, 1952.

Rehearing Denied Nov. 28, 1952.

Crampton Harris, Birmingham, for appellant.

Si Garrett, Atty. Gen., and L. E. Barton, Asst. Atty. Gen., for the state.

The following charges were refused to defendant:

'A.The State does not contend that the defendant forged the name of Matthews Arnold Wagoner to the appeal bond but does contend that the defendant uttered the appeal bond with knowledge that it was a forgery.

'B.In order to convict the defendantthe State must prove by the evidence beyond all reasonable doubt two things: first, that some person signed Mathew Arnold Wagoner's name to the appeal bond set forth in the indictment and that without authority from Mathew Arnold Wagoner and second, that the defendant uttered that appeal bond with knowledge that some person had signed Mathew Arnold Wagoner's name to the appeal bond without authority from Mathew Arnold Wagoner.'

'2.Proof of accused's good character is permitted as circumstance aiding inference of innocence, to be considered by jury in connection with whole evidence.'

'28.Gentlemen of the jury unless the guilt of the defendant of the offense charged in the indictment flows naturally from the facts proved and is consistent with all of such facts, the defendant should not be found guilty.'

'43.Gentlemen of the jury, if there is in evidence a single fact which is inconsistent with the defendant's guilt after the jury has considered all the evidence, the jury should acquit the defendant.

'54.The verdict of the jury should be founded on the evidence alone, and not on conjecture or surmise or guess work, mere suspicion or prejudice.

'55.The truth as established by the evidence is the only foundation of justice and if the evidence is not sufficient to establish the guilt of the defendant beyond a reasonable doubt, but leaves the minds of the jury, after a full consideration of all the evidence, in a state of confusion and uncertainty the jury should acquit the defendant.'

CARR, Presiding Judge.

The appellant, H. A. Shouse, was indicted and convicted for forgery in the second degree.Title 14, Sec. 200,Code 1940.

The instrument which is alleged to have been forged is an appeal bond purporting to assure the appearance of Mathew Arnold Wagoner in the Circuit Court of Jefferson County, Alabama.

It appears that the appellant was employed by the Esdale Bail Bond Company.

Mr. Wagoner was arrested and charged in two cases with driving while intoxicated.The bonding company made two bonds assuring Mr. Wagoner's appearance in the Jefferson County Court of Misdemeanors.The defendant failed to appear and forfeitures on the bonds were ordered.The trials of the principal cases were continued to a later time.

According to the tendencies of the State's evidence, when the date of trials arrived, Mr. Wagoner again did not appear.The appellant secured a 'dummy' or 'standin' for the real defendant.

The trial judge was, of course, unaware of the fact that a substitution was made.After hearing the evidence, judgments of convictions were ordered in both cases.Appeals were forthwith taken to the circuit court, and the Esdale Bail Bond Company made these bonds.One of these latter instruments became the subject of the forgery charge in the instant case.

The evidence for the State does not support a position that the defendant in the case at bar signed Mr. Wagoner's name to the bond.The proof does sustain the contention that he aided and abetted in the commission of the offense of forging the signature or that he, with intent to injure or defraud, uttered and published as true the forged instrument.

The effect of the testimony of the appellant and that of his witnesses was that Mr. Wagoner was present at the trials and that the latter duly signed the appeal bond.

We have held that an appearance appeal bond is an instrument in writing which may be made the subject of forgery in the second degree.Terry v. State, 29 Ala.App. 340, 197 So. 44.

On the basis of the State's evidence the court did not err in denying appellant's motion to exclude the testimony and in refusing to him the general affirmative charge.

We are not convinced that the verdict of the jury was contrary to the great preponderance of the evidence.We will not disturb the judgment of the court on the motion for a new trial.

L. P. Bradford, a former employee of the Esdale Bail Bond Company, testified in behalf of the State.Over appellant's objections, posing the general grounds, the court permitted this witness to answer the following question:

'While you were working for the Bail Bond Company was there any occasions when Herbert Shouse requested that you go out and request individuals to come into the Jefferson County Court of Misdemeanors, to come and stand up in the court and stand up for some individuals not present?'

The effect of the reply was that the request was made on three occasions and that at one time a party'stood up' for the real defendant.

The insistence is made that this was proof of prior separate offenses and the evidence should not have been allowed.

The appellate courts of this jurisdiction have had numerous occasions to review this question in various forms and approaches.This is illustrated in the following cases: Yarborough v. State, 41 Ala. 405;Gassenheimer v. State, 52 Ala. 313;Curtis v. State, 78 Ala. 12;Stanley v. State, 88 Ala. 154, 7 So. 273;Miller v. State, 130 Ala. 1, 30 So. 379;Jackson v. State, 229 Ala. 48, 155 So. 581;Vincent v. State, 231 Ala. 657, 165 So. 844;Johnson v. State, 242 Ala. 278, 5 So.2d 632;Daniels v. State, 243 Ala. 675, 11 So.2d 756;Robinson v. State, 243 Ala. 684, 11 So.2d 732;Gardner v. State, 17 Ala.App. 589, 87 So. 885;Dennison v. State, 17 Ala.App. 674, 88 So. 211;Wilkins v. State, 29 Ala.App. 349, 197 So. 75;Lee v. State, 31 Ala.App. 91, 13 So.2d 583;McKenzie v. State, 33 Ala.App. 7, 33 So.2d 484, certiorari denied250 Ala. 178, 33 So.2d 488, 490.

Wigmore on Evidence contains a very comprehensive discussion of this question.SeeVol. II, 3rd Ed., beginningat page 192.Note particularly Sections 304and315.See also, 22 C.J.S., Criminal Law, § 688, page 1109.

We held in Wilkins v. State, supra, that for evidence of the nature of instant concern to be admissible it is unnecessary that the act be a crime.

It is urged in the case at bar that the prior acts did not necessarily embrace or comprise forgery charges and were therefore inadmissible because of lack of similarity of offenses.

The holding in the Wilkinscase, supra, does not sustain this insistence.The accused was charged with the offense of assault with intent to rape.Proof was allowed that on prior occasions he had made 'indecent exposures.'

In the case of McKenzie v. State, supra, the Supreme Court, on certiorari, made this observation:

'And this principle is emphasized in the instant case by the further fact the proof as to the attack on Mrs. Outlaw followed the like pattern or technique as to Miss Eddins, that is, luring her to the same secluded spot and first making use of the pretense of a lost bracelet and the like.'

The evidence for the prosecution in the instant case supports the conclusion that the appellant was a party to a very unique plan or scheme, that is, getting a dummy or substitute for the real defendant.The obvious purpose was to prevent a final judgment against his employer on the appearance bonds.The prior acts or attempts were transactions that had features common to these.We think that the similarity of the procedures showed the processes of motive, intent, design, and system in the charged offense.

The court permitted Mr. Wagoner to testify that he paid the appellant, or someone representing the Esdale Bail Bond Company, a bond fee.This related to an undisputed matter.Stallings v. State, 249 Ala. 1, 32 So.2d 233;Wilson v. State, 31 Ala.App. 21, 11 So.2d 563.

In the Jefferson County Court of Misdemeanors both cases against Mr. Wagoner were tried on the same day, and an appeal to the circuit court was taken in each case.In the case at bar Mr. Wagoner was allowed to testify that he did not sign either appeal bond assuring his appearance in the latter court, nor did he authorize the insertion of his name on either instrument.

Clearly the substantial rights of the accused were not infringed by the introduction of this proof.Mr. Wagoner previously testified that he was not present at the trial.If the jury accepted this evidence as a fact, it became inescapably apparent that Mr. Wagoner did not sign either bond.

The same rule is applicable to the testimony of Mr. Wagoner's son as to transactions and conversations he had with someone representing the Esdale Bail Bond Company.This evidence related to efforts to make settlements of the two criminal cases then pending against the father of the witness.Supreme Court Rule 45,Code 1940,Tit. 7, Appendix.

According to the State's evidence Mr. Wagoner, Sr. was in Tulsa, Oklahoma on the day it is claimed his signature to the bond was forged.Mr. Wagoner's son testified that he talked to his father over long distance telephone on October 22, 1950 and mailed him a check to Tulsa on the day following.The alleged forgery was committed on October 24.

The son was permitted to testify that he knew where his father was because he talked to him over long distance phone and that the call came collect.The ground posed to the objection was that it called for hearsay testimony.

The questions to which objections were interposed sought to elicit only preliminary information.The son did not declare that his father was in Tulsa on the day of the telephone conversation.

31 C.J.S., Evidence, § 188, beginning at page 909, treats at length the rules relating to the admissibility of telephone conversations.

We do not find any reversible error in the matter of instant concern.

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