142 So. 2d 663 | Ala. | 1960
"There is now pending in the Court of Appeals of Alabama the appeal of Helen Christison v. State of Alabama, 7 Div. 588 [
" 'The Grand Jury of said County further charges that before the finding of this Indictment Helen Christison, alias Helen A. Christison, whose name to the Grand Jury is otherwise unknown than as stated, the Custodian of Etowah County School Funds, and being then and there entrusted with the disbursement of money or funds belonging to the Board of Education of *2 Etowah County, Alabama, did embezzle or convert to her own use, or to the use of another, a bank check in the amount of $225.00, and of the value of $225.00, drawn by the said Helen Christison, alias Helen A. Christison, as Custodian of the Etowah County School Funds, made payable to Clorene C. Hallmark, and drawn on the American National Bank of Gadsden, Alabama, a national banking association chartered by the Federal Government through the office of the Comptroller of the Currency, which said bank check had come into her possession by virtue of her public office or public trust, as aforesaid, contrary to law and against the peace and dignity of the State of Alabama.' (R. p. II.)
"Before trial on the merits of the indictment, the defendant pleaded autrefois acquit by reason of her acquittal on a prior trial in December, 1957, on an indictment handed down by the same grand jury on, to-wit, November 5, 1954. Count 2 of that indictment had accused her as follows:
" 'The Grand Jury of said County further charges that before the finding of this Indictment, Helen Christison, alias Helen A. Christison, whose name to the Grand Jury is otherwise unknown than as stated, the Custodian of Etowah County School Funds, and being then and there entrusted with the disbursement of money or funds belonging to the Board of Education of Etowah County, Alabama, did embezzle or convert to her own use, or to the use of another, $250.00, lawful United States Currency, which said money had come into her possession by virtue of her public office or public trust, as above set out, contrary to law and against the peace and dignity of the State of Alabama.' (R. pp. VII, 5 and 6)
"In the course of the trial of the issue of former acquittal, the defendant offered a stipulation, paragraph 1 of which reads:
" 'That on, to-wit, December 9, 1957, the defendant was placed on trial in Case No. 4354, and on December 12, 1957, the Jury returned a verdict of not guilty. That the case was submitted to the Jury on all three counts contained in the Indictment.' (R. p. 21.)
"Obedient to the trial judge's peremptory instruction, the jury returned a verdict in favor of the State. The court entered judgment accordingly, deciding the issues 'in favor of the State on Defendant's Pleas of Abatement 3, 4, 6 and 7, separately and severally, as to Counts 1 and 3 of the Indictment, separately and severally.' (R. p. XIII.)
"Both views in this court assume the correctness of Eastep v. State,
"So that, in this instance, under the above rule, both indictments having been returned by the same grand jury are presumed to operate within the same period of time.
"Count 1 of the instant indictment is considered to be nonpertinent to this inquiry, since it clearly specifies a nonrelated crime, i. e., forgery.
"It is also assumed without disagreement that the proper test for a plea of double jeopardy is that specified in the Eastep case, supra, taken from Brown v. City of Tuscaloosa,
*3" ' "A former acquittal is no bar to a subsequent prosecution, unless the accused could have been convicted upon the first indictment upon proof of the facts averred in the second." Hall v. State,
134 Ala. 90 ,115 ,32 So. 750 ; Dominick v. State,40 Ala. 680 , 91 Am.Dec. 496; People v. McDaniels,137 Cal. 192 ,69 P. 1006 , 56 L.R.A. 578, 92 Am.St.Rep. 81, note page 105.
" 'As stated by Mr. Freeman in the note referred to (92 Am.St.Rep. 107, c): "Under this test it is the facts which are alleged in the two indictments, and not the testimony given in either, by which the identity of the offenses is to be determined. Accordingly it is held immaterial that the evidence relied upon to support the second charge was, in fact, introduced on the trial of the first. The criterion is not what testimony was introduced, but what might have been, and the determinative feature is whether the facts alleged in one charge would support a conviction under the other." ' See also Campbell v. State,246 Ala. 286 ,20 So.2d 878 .
"With respect to count 2 of the indictment on former acquittal, it is noted that the amount there charged to have been embezzled was $250.00, whereas the amount of the Hallmark check in count 3 of the instant indictment is specified as $225.00. It is assumed, for the purposes hereof, that proof of the lesser amount would support the charge of the greater. Kersh v. State,
"The division of this court occurs as to whether, under the wording in count 2, embezzlement of '$250.00 lawful United States Currency' could have been proved by showing embezzlement of a check for $225.00. 31 U.S.C. (1958 Ed.), § 462, specifies what is legal tender. Cf. U.S. Constitution, Art.
"On the one side, there is a long line of decisions approved in O'Brien v. State,
"In contrast, we find Simmons v. State,
" '* * * there was absolutely no evidence introduced to prove that the defendant embezzled or converted to her own use any United States Currency, but to the contrary, the entire body of the evidence dealt with the alleged forgery and/or embezzlement of certain bank checks.'
"In the course of the opinion, the language of Chief Justice Gardner in Simmons v. State, supra, was quoted with approval.
"The Judges of the Court of Appeals being unable to reach an unanimous conclusion on the appeal now before us, under authority of Code 1940, T. 13, § 88, we hereby certify to your Honorable Court the following question:
"Is proper proof of a verdict of 'not guilty' on an indictment charging
" 'The State of Alabama } Circuit Court
__________ County } Fall Term, 1954
* * * * * *
" 'Count Two
" 'The Grand Jury of said County further charges that before the finding of *4 this Indictment, A. B., whose name to the Grand Jury is otherwise unknown than as stated, the Custodian of __________ County School Funds, and being then and there entrusted with the disbursement of money or funds belonging to the Board of Education of __________ County, Alabama, did embezzle or convert to his own use, or to the use of another, $250.00, lawful United States Currency, which said money had come into his possession by virtue of his public office or public trust, as above set out, contrary to law and against the peace and dignity of the State of Alabama.'
sufficient, when properly pleaded, to preclude (because of putting the defendant in double jeopardy under Constitution, § 9) a prosecution on an indictment returned by the same grand jury, which indictment reads:
" 'The State of Alabama } Circuit Court
__________ County } Fall Term, 1954
* * * * * *
" 'Count Three
" 'The Grand Jury of said County further charges that before the finding of this Indictment A. B., whose name to the Grand Jury is otherwise unknown than as stated, the Custodian of __________ County School Funds, and being then and there entrusted with the disbursement of money or funds belonging to the Board of Education of __________ County, Alabama, did embezzle or convert to his own use, or to the use of another, a bank check in the amount of $225.00, and of the value of $225.00, drawn by the said A. B., as Custodian of the __________ County School Funds, made payable to C. D., and drawn on the __________ National Bank of __________, Alabama, a national banking association chartered by the Federal Government through the office of the Comptroller of the Currency, which said bank check had come into his possession by virtue of his public office or public trust, as aforesaid, contrary to law and against the peace and dignity of the State of Alabama.' "
LIVINGSTON, C. J., and SIMPSON and COLEMAN, JJ., concur.