In Dutton v. State, 25 Ala. App. 472, 475, 148 So. 876 (1933), this charge was held to be a correct statement of the law citing Everett v. People, 216 Ill. 478, 75 N.E. 188, as the leading supporting authority.Summary of this case from Wilson v. State
8 Div. 770.
June 30, 1933.
Appeal from Circuit Court, Morgan County; W. W. Callahan, Judge.
John Ed Dutton was convicted of altering the record of a mortgage, and he appeals.
Reversed and remanded.
The following charge was given at defendant's request:
"19. The court charges the jury that although there may be no probability of the innocence of the defendant — yet, if there is in the minds of the jury a reasonable doubt of his guilt, it is the duty of the jury to give him the benefit of the doubt and acquit him."
The record shows the following:
"Explanation to Charge 19: Criminal cases are not tried on probabilities. The measure here is beyond a reasonable doubt and is a good deal stronger term than probability, and this asserts that of course a mere evidence of probability, that wouldn't authorize you to convict a man; it must be of that type of evidence that satisfies you beyond a reasonable doubt of his guilt. * * *
"Mr. S. A. Lynne: We except to the explanation of Charge 19. * * *
"Court: Gentlemen of the jury, I read charge number 19 to you and made some statement to you about probability. Now I think I said cases of this character or criminal cases are not tried on probabilities. Well, probabilities within and of itself is not enough to warrant a conviction. Of course, a probability, if you had a probability in your mind of his innocence, why that might be sufficient to create a reasonable doubt in your mind of his guilt, and if it was, why then he should be acquitted."
The following charges were refused to defendant:
"31. The court instructs the jury that, in order to warrant a conviction for crime on circumstantial evidence, the circumstances, taken together, should be of a conclusive nature and tendency, leading, on the whole, to a satisfactory conclusion, and producing in effect, a reasonable and moral certainty that the accused, and no one else, committed the offense charged; and it is the invariable rule of law that, to warrant a conviction upon circumstantial evidence alone, such facts and circumstances must be shown as are consistent with the guilt of the party charged, and as cannot, upon any reasonable theory, be true, and the party charged be innocent; and in this case, if all the facts and circumstances relied upon by the state to secure a conviction can be reasonably accounted for upon any theory consistent with the innocence of the defendant, then the jury should acquit the defendant."
"32. The court instructs the jury, as a matter of law, that, where a conviction for a criminal offense is sought upon circumstantial evidence alone, the state must not only show, by a preponderance of the evidence and beyond a reasonable doubt, that the alleged facts and circumstances are true, but they must be such facts and circumstances as are absolutely incompatible upon any reasonable hypothesis other than that of the guilt of the accused."
"33. The court instructs the jury as a matter of law that, where a conviction for a criminal offense is sought upon circumstantial evidence alone, the state must not only show by a preponderance of the evidence that the alleged facts and circumstances are true, but they must be such facts and circumstances as are absolutely incompatible, upon any reasonable hypothesis, with the innocence of the accused, and incapable of explanation upon any reasonable hypothesis, other than that of the guilt of the accused. And in this class of cases the jury must be satisfied, beyond a reasonable doubt, that the crime has been committed by some one in manner and form as charged in the indictment, and then they must not only be satisfied that all the circumstances proved are consistent with the defendant having committed the act, but they must also be satisfied that the facts are such as to be inconsistent with any other rational conclusion than that the defendant is the guilty person. It is your first duty to determine from the evidence what facts and circumstances are thereby established, and then to draw from such facts and circumstances, after carefully examining and weighing them, your conclusion as to the guilt or innocence of the defendant. It is your duty to exercise great care and caution in drawing conclusions from proved facts. They should be fair and natural, and not forced and artificial conclusions, and all the facts and circumstances taken together should be of a conclusive nature and tendency, leading on the whole to a satisfactory conclusion, and producing, in effect, a reasonable and moral certainty that the accused, and no one else, committed the offense charged. It is not sufficient that they create a probability, though a strong one, and if, therefore, assuming all the facts to be true which the evidence tends to establish, they may yet be accounted for upon any hypothesis which does not include the guilt of the accused, the proof fails. It is essential therefore that the circumstances, taken as a whole, and giving them their reasonable and just weight, and no more, should to a moral certainty exclude every other hypothesis."
Lynne Lynne, of Decatur, for appellant.
An indictment for a crime, the essence of which consists in the alteration or fabrication of a written instrument, must describe the instrument either in hæc verba or according to its legal tenor and effect. Bartlett v. State, 8 Ala. App. 248, 62 So. 320; State v. McNaspy, 58 Kan. 691, 50 P. 895, 38 L.R.A. 756; People v. Tilden, 242 Ill. 536, 90 N.E. 218, 31 L.R.A. (N.S.) 255, 134 Am. St. Rep. 341, 17 Ann. Cas. 496; 12 R. C. L. 157. In order that an alteration may constitute a crime, it is essential that it be material. 26 C. J. 902. An alteration which does not affect the validity of the instrument is not material, and is not a crime. State v. Hendry, 156 Ind. 392, 59 N.E. 1041, 54 L.R.A. 801; Turnipseed v. State, 45 Fla. 110, 33 So. 851, 853; State v. Dorrance, 86 Iowa, 428, 53 N.W. 281; State v. Thornburg, 28 N.C. 79, 44 Am. Dec. 67. The writing of the words "his mark" with the cross-mark between does not alter or change the legal effect of the mortgage. Barksdale v. Bullington, 194 Ala. 624, 69 So. 891; Sheehan v. Kearney, 82 Miss. 688, 21 So. 41, 35 L.R.A. 102. The trial judge is without authority to strip a defendant of his right to have a charge given as it is requested by a qualification so limiting, restricting, or modifying the charge as to weaken the force to which it was entitled. If requested charges need limitation, restriction, or modification, they should be refused. Eiland v. State, 52 Ala. 322. Charge 31 was correct and should have been given. Marzen v. People, 173 Ill. 43, 50 N.E. 249. Charge 32 was correct. Everett v. People, 216 Ill. 478, 75 N.E. 188. Charge 33 stated a correct legal proposition. State v. Novak, 109 Iowa, 717, 79 N.W. 465.
Thos. E. Knight, Jr., Atty. Gen., for the State.
Brief did not reach the Reporter.
The defendant was indicted on a charge of violating section 3207 of the Code of 1923 in that he did willfully, maliciously, or fraudulently alter page 308 of volume 297, Chattel Mortgage Record of Morgan county, Ala., in that he did write on the said record the "his words X between the words "Walice" and mark" "Haraway" where the same appears on said page in the said record purporting to be the record of the signature of Walice Haraway to a chattel mortgage; the said record being a public record of Morgan county, Ala.
The statute under which this prosecution is brought creates a crime similar and akin to forgery, but there is a marked difference in the two crimes. This statute, Code, § 3207, is designed to protect the records, authorized by law, just as they are recorded, and to guarantee that they will remain unchanged.
It is not necessary to a conviction that the alteration or defacement be fraudulent or that it be malicious. If the change is made intentionally, it would be a violation of the statute.
In a charge of forgery there must be a material change or alteration. In a prosecution under this statute the question is not the materiality of the change, but, Was the record altered, injured, mutilated, or destroyed either in whole or in part intentionally, fraudulently, or maliciously? The point is that the statute is aimed at the preservation of the record as a monument of what has been done. The indictment in this case charges just that, identifies the exact spot on the record, and specifies the change made. The indictment is sufficient as against the demurrer.
The contention of appellant's counsel and authorities cited are based upon the theory that this is a prosecution for forgery or the fraudulent alteration of an instrument. The authorities cited, therefore, have no application. In compliance with the general rules, an indictment which alleges the elements of the offense as defined by statute is sufficient. 53 Corpus Juris, 653 (99).
The word "willful" as used in the statute here considered means intentional in contradistinction to "accidental" or "involuntarily." It presupposes a wrong and an act governed by the will to do the act. Williams v. State, 83 Ala. 68, 3 So. 743. It is a much stronger word when used in a criminal statute than the word "intentional." Johnson v. State, 61 Ala. 9.
Exception is reserved to the court's explanation of written charge 19 requested by defendant and marked "given by the court." Section 9509 of the Code of 1923, provides for the request for written charges, and, when so moved for, must be given or refused in the terms in which they are written. Parties litigant are entitled to this right, and the court must so pass upon them. But this statute is not to be construed as to hamper trial courts in the due administration of justice. The acts of 1915 (Gen. Acts 1915, p. 815) contained a restriction on trial judges and required them to read the given charges to the jury without comment or explanation. With this restriction in the statute this court held that to cut off all further explanation would hamper trial courts in the administration of justice. Following that decision the Code omits the restriction, and we now hold, in line with our former decisions, that, so long as a trial judge confines his explanation to a proper statement of the law, such explanation will not be cause for reversal. Tennessee, A. G. R. Co. v. Rossell, 18 Ala. App. 17, 88 So. 362.
Refused charges 11 and 28, while stating correct propositions of law, are fully covered by the court in its oral charge and by written charges given at the request of defendant.
Charge 31 was marked "refused" and signed by the judge with the notation: "The charge is argumentative and calculated to mislead the jury. It exacts too high a degree of proof." The charge is an exact copy of a charge held to be good and its refusal error by the Supreme Court of Illinois in Marzen v. People, 173 Ill. 43, 50 N.E. 249. The charge is no more an argument than any other, in which are grouped strong expressions of the law bearing on the burden of proof in cases dependent for conviction on circumstantial evidence. Its terms are plain and unambiguous, so that they may be understood by any man of ordinary intelligence. The degree of proof is high, but it should be high. Our law recognizes, and rightfully so, that convictions may rest alone upon circumstantial evidence. But our experience has taught us to know that such convictions should be carefully scrutinized by the judiciary, lest the lay mind which make up our juries may be led into deductions and inferences from proven facts, which may be grounds for suspicion, but which do not rise to that force which impels the mind to a conclusion of guilt beyond a reasonable doubt. In our fallible administration of the criminal law, it is to be regretted that some time and all too frequently the guilty escape punishment, but the conviction of an innocent man is awful to contemplate, and therefore we must preserve every safeguard to persons charged with crime, among which is the oft repeated and emphasized maxim that no conviction must be had except upon evidence which convinces the jury beyond a reasonable doubt. No chain of circumstances which falls below this standard in any of its links will suffice to deprive a defendant of his life or liberty. The foregoing statement of the law on this subject is borne out by the opinions in the following cases: Ex parte Acree, 63 Ala. 234; Pickens v. State, 115 Ala. 42, 22 So. 551; Cannon v. State, 17 Ala. App. 82, 81 So. 860.
Refused charge 32 states the law correctly and should have been given. Everett v. People, 216 Ill. 478, 75 N.E. 188.
Refused charge 33 was an argument, and was properly refused.
For the errors pointed out, the judgment is reversed, and the cause is remanded.
Reversed and remanded.