Winn v. State

• Decision Date: 06 February 1968
• Docket Number: 3 Div. 277
• Citation: 44 Ala.App. 271,207 So.2d 138
• Parties: Jack WINN v. STATE.
• Court: Alabama Court of Appeals

Page 138

207 So.2d 138

44 Ala.App. 271

Jack WINN v. STATE.

3 Div. 277.

Court of Appeals of Alabama.

Feb. 6, 1968.

Wm. J. Fuller, Jr., Montgomery, for appellant.

MacDonald Gallion, Atty. Gen., and Robt. F. Miller, Asst. Atty. Gen., for the State.

JOHNSON, Judge.

Appellant was indicted by the Grand Jury of Montgomery County, Alabama, during the July Term, 1967, for the offense of forgery. Upon a plea of not guilty, appellant, represented by court-appointed counsel, was tried by a jury and found guilty as charged and sentenced to two years in the State penitentiary. He now makes this appeal.

William Kollister, Manager of the AmVets Club in Montgomery, testified that on April 20, 1967, appellant came into the AmVets Club and asked Kollister to cash a $20.00 check; that the check was made on the First National Bank of Montgomery; that the check was made to the order of appellant; and that it was signed by one Bobby S. Brown as maker. Kollister further testified that he asked appellant to endorse the check, which appellant did; and that appellant purchased a 'half pint of bourbon and a coke, and put the rest of the money in his pocket.' Kollister stated that the check was subsequently returned by the bank stamped, 'Signature does not agree with one on file.' Having received no money for the check, Kollister said that he tried to collect 'four different times from Jack Winn.' (appellant). Asked whether or not appellant said anything to him with reference to the signature on the check, Kollister said, 'The only thing he said to me when I brought the check out (was) * * * 'Yes, I know, it's not Bobby's check. '' Kollister further stated that appellant ultimately reimbursed him for the loss which he allegedly suffered but that it was after he had sworn out a warrant for appellant's arrest.

Mr. Bobby S. Brown testified that the appellant was at one time an employee of his. Brown stated on direct examination that he had never authorized appellant to sign his (Brown's) name on a check and that the signature on the check which was allegedly cashed by Kollister for appellant was not his signature.

City Policeman C. L. King on direct examination testified that he interrogated appellant on the night of May 17 subsequent to his arrest; that prior to the interrogation he advised appellant that he did not have to make a statement; that any statement he made might be used in a court of law against him; that he had a right to an attorney; and that if appellant could not afford one, one would be appointed for him. King stated that no promises were made to appellant; that he was not threatened or coerced in any way; that he was offered no reward or hope of reward; that no one else present threatened or coerced him in any way; and that no one else offered any reward or hope of reward. Officer King then testified to a statement made by appellant in which appellant stated that he went to the AmVets Club on April 20, 1967; that he was drunk at the time; that he 'had a check already made out and gave it to a waitress named Eloise and she went and cashed the check and gave me the money for it.' Appellant admitted forging Bobby S. Brown's name on the check. Officer King said further that appellant did not want a lawyer at the time of the interrogation.

It appears from the record that during the testimony of the State's first witness the following conversation took place:

'A JUROR: I for one noticed that before the trial we were not asked if we had been on a jury in the past, or did any of us know the defendant, had business with him, or attorneys, or anything. I don't know whether it is mandatory.

'THE COURT: No, it is not mandatory. Neither one of them asked it.

'A JUROR: I recognized Mr. Winn. He worked for me one time.

'THE COURT: That wouldn't make any difference.'

At the conclusion of Kollister's testimony, the court, of its own volition and without any objection being raised by either side, asked the following:

'THE COURT: Let me ask the jury one question since we didn't qualify them. Has any juror any fixed opinion in this case either one way or the other where he couldn't accord this defendant a fair, a just and impartial trial?

'(NO RESPONSE).

'THE COURT: That's all I want to ask.'

Appellant contends that the trial court committed error in that it failed to qualify the jury as required by Tit. 30, Sec. 6, Code of Ala., 1940, which reads as follows:

'It is the duty of the court, before administering the oath prescribed by law to any grand, petit, or tales jurors, to ascertain that such juror possesses the qualifications required by law; and the duty required of the court by this section shall be considered imperative.'

The Supreme Court of Alabama in Washington v. State, 81 Ala. 35, 1 So. 18, stated in part as follows:

'But very many things occur in the trial of such causes of which no record need be made, and yet they require affirmative action of the court, or of some ministerial officer. Ascertaining the qualifications of jurors is an example of this class of judicial questions, and service of a copy of the venire, and of the indictment on the defendant, is an illustration of ministerial service of which the silence of the record raises no presumption of error. If such duty be omitted, the objection must be shown to have been taken in the court below. When the record is silent on questions of these classes, this court presumes the trial court and its officers did their duty.' (Emphasis ours.)

In Jackson v. McFadden, 260 Ala. 109, 69 So.2d 286, the Supreme Court of Alabama, in discussing the trial court's failure to question the jury panel as to whether any of them were related to any attorney appearing for either party, stated in part as follows:

'* * * Of course, there was a duty for the trial court to ask the members of the panel whether any one of them was related to any attorney appearing for either party. That is an imperative duty. But that omission occurred in the...