Shouse v. State
63 So. 2d 722
Ala. Ct. App.
1952
Check Treatment

*1 63 So.2d 722 v. STATE.

SHOUSE Div. 462. Appeals Alabama. 28, 1952. Oct. Rehearing Nov. Denied

615- Harris, Crampton Birmingham, ap- pellant.

CARR, Presiding Judge. Shouse, appellant, H. A.
The was- in- and convicted for dicted in the degree. second Title Sec. The alleged instrument which is to have purporting forged bond appearance assure of Mathew Arnold Wagoner in the Circuit Court of Jefferson County, Alabama. appears

It was em- ployed by Company. the Esdale Bail Bond Mr. charged arrested and driving cases with while two intoxicated. company bonding made two bonds as- appearance suring Wagoner’s Mr. County Court of Misdemeanors. appear The defendant failed and for- bonds were feitures on ordered. The principal cases trials continued Gen., Garrett, Atty. L. E. Bar- Si to a later time. Gen., Atty. ton, for the State. Asst. According the tendencies of the State’s evidence, arrived, when the date of trials - appear. Wagoner again did not “dummy” appellant secured or “stand-

for the real defendant. in” was, course, judge trial unaware fact that substitution was made. hearing evidence, judgments

After were ordered in both convictions cases. Appeals were forthwith taken cir- court, and the Esdale Bail Bond Com- cuit pany made these bonds. One of these lat- subject became the ixrstruments ter charge in the instant case. forgei-y approaches. fol This is illustrated in the State State, lowing Yarborough defendant cases: position that support a 405; 313; name Gassenheimer v. signed Wagoner’s Ala. bar the case at 12; Stanley the Curtis v. proof does sustain contention Ala. and abetted in the Miller v. aided So. that he Ala. forging the offense commission Jackson injure Ala. he, with intent to Vincent v. signature or published Ala. defraud, as true uttered and Johnson Daniels So.2d forged instrument. *4 11 5o.2d Robinson v. testimony ap- the of of The effect the 11 So.2d Gardner that of his was that pellant and witnesses Ala.App. 589, 17 Den present at and was the trials Wagoner Ala.App. nison v. duly the signed that the latter Wilkins v. So. appearance that have held We Lee 13 So.2d writing is an instrument appeal bond McKenzie v. subject the of be made may certiorari denied 250 Ala. Terry degree. second in the 490. 44. Wigmore very on Evidence contains a basis of State’s evidence the On the the comprehensive question. this discussion of denying appellant’s not err in did court II, Ed., page See Vol. 3rd at beginning testimony exclude the and in re- motion to particularly 192. Note 304 and Sections fusing' general him affirmative to the also, Law, 22 C.J.S., See Criminal § charge. 688, page 1109. verdict not that the We convinced are We supra, held in Wilkins that contrary pre- great to the jury of the was for of the evidence of instant con- nature will not ponderance of the evidence. We cern to be unnecessary admissible it is that judgment the on the disturb the court the act be crime. a new motion for a trial. urged It is in the at case the bar that Bradford, employee a former L. P. prior acts necessarily did not embrace or Company, testi of the Esdale Bail Bond comprise forgery charges and were there- appel fied in behalf of the 'State. 'Over fore inadmissible because of lack of similar- posing general lant’s objections, the ity of offenses. grounds, permitted this witness The holding in case, supra, the Wilkins question: following to answer the not sustain this insistence. The ac- working the “While were for charged cused was with the offense of as- Bail was oc- Company Bond there rape. sault with intent to Proof al- was requested casions Shouse when Herbert lowed that prior occasions he had made request you go that out and individuals exposures.” “indecent County to into the come Misdemeanors, and to come In the case of State, supra, McKenzie v. Supreme inup Court, the and for court stand certiorari, made this present?” some individuals observation: reply The effect of that re- principle was “And emphasized quest was made on three and occasions instant case the further fact up” party proof that time a for at one “stood as to the attack on Mrs. the real defendant. Outlaw pattern followed the like or technique Eddins, is, toas Miss The insistence is made that this was luring her to same spot secluded proof prior separate offenses and the making pretense first use of the should not have been allowed. evidence lost bracelet and a the like.” jurisdic courts prosecution tion have had occasions to re for the numerous supports view this in various forms and instant case the conclusion that testify he very unique permitted was party The son appellant was a dummy he is, because scheme, where his father was plan getting knew or long phone him over distance real defendant. for the talked or substitute ground prevent judg- call came collect. The a-final that the purpose was to obvious appear- employer posed objection that it -called on the against his ment attempts testimony. hearsay acts prior or ance bonds. com- transactions that had features were objections questions to which similarity that the think mon these. .We only preliminary interposed sought to elicit processes procedures showed The son did information. declare motive,' intent, system design, and day on the in Tulsa his father was ' ¡ . . charged offense. telephone conversation. permitted The court Evidence, at C.J.S., beginning § appellant, testify paid relating length the at rules treats page representing the Esdale Bail .someone telephone, conversa- admissibility of to- the *5 Company, Bond a bond fee. This related tions. State, undisputed to an Stallings matter. v. in any error find reversible not We do 1, State, 32 249 Ala. So.2d Wilson v. of concern. matter instant the 21, Ala.App. 31 11 563. So.2d attorney that at times Appellant’s urges County In the Court Mis- of demeanors questions the permitted leading against Wagoner both cases Mr. was prosecuting officers. There part of the an day, -were tried on the and same any in incident about discretion no abuse of to the circuit in each case. court was taken State, complaint v. Orr al- which is made. In the Wagoner case bar was at Mr. 642, Millhouse v. 225 Ala. 144 So. testify sign lowed to either that he did not 85, v. State, (cid:127)appeal Bruce appearance in the 235 Ala. 177 assuring 'bond his court, State, Ala.App. 263. in- 23 123 So. latter the nor did he authorize sertion instrument. of his name on either attorney, Tisdale, was Ira E. a local Mr. day ac- rights'of the 24th

Clearly question: the the substantial asked “Prior to this infringed by the introduc- em- October, cused were ever of had previous- proof. Wagoner Mr. represent tion ployed Esdale to Mr. Jim present at the he was not ly testified that people Judge Boner’s court?” in accepted this evidence jury the trial. If this The witness answered inescapably apparent fact, it a became as reply negative. removed The bond. sign either did rights of accused. injury the possible testi- applicable to the same rule is The 14, State, 254 Ala. Helms v. Wagoner’s as to transac- son mony of Mr. 45 So.2d 44. 35 Gills v. with some- had conversations he and tions trial the During progress of the the Bond Esdale Bail the representing one the did effect that State solicitor in to efforts stated evidence related Company. This signed the contend that criminal not of the two settlements make to the Wagoner’s name father of Arnold Mathew against the -pending then cases appel admission On the Rule basis Supreme Court witness. the attorney it was error lant’s insists 7, Appendix. 1940, Tit. A and B. instructions written refuse State’s- evidence According to the may effects be binding Whatever other Tulsa, Oklahoma was in Sr. Wagoner, Mr.' prosecuting to the statement given signature to his claimed day if is on the attorney, be taken include it cannot tes Wagoner’s son forged. was bond not contend State did admission long over father talked to his tified and defendant aided abetted 22, 1950 and October telephone on distance of the offense. the commission another in day to Tulsa on the check him a mailed therefore, confined the charges, factual The com-' alleged was The following. narrow limitations. within too issues October 24. mitted

619 King that the this out in v. may pointed out also It be criminal So.2d 448. hypothesis in charges proper Bush “belief ‘from cases is evidence’.” has charge in the instant case 211 Ala. 100 So. 312. jury tendency mislead the and invades a ap province. Morris v. 2 was charge Refused numbered its 61; Raymond 21 Ala. opinion body 93 So. from the parently taken App. 107, 105 So. 394. Garrison itself, This, make does not 705. charge language used refused acceptable. Co. Britling Cafeteria charge may body numbered be found in Irwin, Max opinions. court This alone Ala.App. 487, 27 So.2d well v. Authorities, approval. its not sanction 804. supra. charge argumentative. charge This is a mere- statement of guilt or innocence the de being truism without based on legal determinable on the basis fendant is not omitting any and reference of how uncertainty state of confusion principle legal had charge jury. For this reason mind of the State, supra; the case. Maxwell v. issues in properly refused. Favors numbered 55 Co., v. Pacific Mutual Life Ins. Fleetwood So.2d A.L.R. 171. argumentative ten also has charge dencies. charges Refused numbered *6 62, 63, by given 19, charge covered the oral 53 are Refused instructions numbered 7, Sec. purely argumentative. Title instructions. and 64

written are 1940; State, 32 Gettings attempted respond We each have 644, 29 So.2d 677. argued very is able appellant’s attorney. brief we Those 21 is not Refused instruction number legal principles have omitted relate to which hypothesized the evi- on the “belief ‘from position have against been decided State, supra. Bush v. dence’.” point We out accused. will not these charge numbered 28 is not Refused , opinion. in this verbiage in stated the same the instruc- as Both the Assistant Attorney approved Griffin v. General and tions which were appellant’s counsel have favored with Odom us 43 So. very able, .helpful briefs. Our labors have Jones lightened State, Ala.App. and Davis account. 101 So. Ala.App. 419, 126 So. We find no reversible error appearing in. the record. very likely pro It is this variation judgment below the above is controlling hibits the effect of- ordered affirmed. (cid:127) any event, In in more recent authorities. Affirmed. departed courts have cases Application On for Rehearing. Byers holding. this former from 121 So. certiorari denied In this opinion extended application Ala. 121 So. Nelson v. 35 for rehearing we desire to correct two in- certiorari denied advertent mistakes appearing in origi- our 236; Clayton opinion. v. nal State, Ala.App., 63 So.2d 564. The name of attorney who testified Tidwell, the case is Ira E. and not Irá im- To the contention of the sustain E. Tisdale.' propriety charge the refusal of numbered attorney 43, appellant’s cites Walker v. Mr. Wagoner’s son testified that he sent Ala. Hubbard money v. his father Tulsa, some Oklahoma. record, therefore, and The does hot warrant longer no These authorities are our statement others. that the son sent his father (cid:127) pointed our a check followed courts. writer to Tulsa. ;(cid:127) -620 rehearing

In brief on statement: counsel for makes this of the testi- “A careful examination mony of L. P. Bradford reveals pathetic untrustworthy gives to the This court

character. testimony pathetic witness both which it weight and construction says The court does not deserve. was, testimony ‘that of his effect party up for stood at one time a respectfully sub- real We defendant.’ careful not to mit the witness was say credits him -with what

saying.” we went outside We do think that making the statement the record is made. reference following answered the Mr. Bradford question in the affirmative: working for the

“While Company was there oc- Bail Bond request- when Herbert Shouse casions request indi- you go out and ed that viduals to come into Misdemeanors, County Court of in the court come and *7 pres- individuals for some ent?” times, many “How He then asked: “I replied: contacted Bradford?” He question: “Did Then this three.” “I He answered: court?” them come one.” seen we have insistences to other responded treated our herein opinion. Further elaboration original repetition. be a would in effect rehearing is over- ruled. STATE.

HARRIS v. 2 Div. 844. Appeals Alabama. 25, 1952. Nov.