#### In re William M. MARTIN, III v. STATE of Alabama. Ex parte William M. Martin, III.

SC 2508.

Supreme Court of Alabama.

Nov. 4, 1977.

Rehearing Denied Dec. 9, 1977.

J. Doyle Fuller of Perry, Fuller & Dick, Montgomery, for petitioner.

William J. Baxley, Atty. Gen., and John B. Rucker, III, Asst. Atty. Gen., for the State.

BEATTY, Justice.

We granted the writ of certiorari to determine whether the decision of the Court of Criminal Appeals had misapplied the law dealing with the misjoinder of offenses, Title 15, § 249, *Alabama Code,*and the law dealing with the effect upon a Code form indictment for first degree forgery of adding the endorsement upon the instrument.

The indictment under consideration is included in the opinion of that Court which concluded that the “addition of the endorsement [on the check] to the indictment in no way weakened its legal force or averments, and as such was proper.” In support of that statement the Court cited *Smith v. State,*35 Ala.App. 580, 50 So.2d 791 (1951), and *Wyatt v. State,*257 Ala. 90, 57 So.2d 366 (1952). Neither of those cases, however, controls the appropriateness of the allegation here. In *Smith,*the endorsement which appeared on the indictment was one which read: “Indictment for 2nd Degree Forgery.” Clearly, it was not an endorse*1153ment designed to affect any negotiation or change in pecuniary interest, but was intended merely as a means of identification, and so it was accurate to conclude that it constituted no part of the indictment. In *Wyatt,*the defendant was charged' with forging the endorsement of a county warrant, and the question was whether such a charge constituted second degree forgery under Alabama law. The question of the endorsement’s being either surplusage or material to the charge was neither in issue nor considered in that opinion.

In brief the State contends that this indictment clearly charges the petitioner with first degree forgery of a check under Title 14, § 199, *Alabama Code,*and that the *endorsement*is a part of the forgery of the *check.*The State maintains that when one endorses his name on the back of a forged check, “that is all part of the forgery of that check,” and cites *Simmons v. State,*55 Ala.App. 679, 318 So.2d 374 (1975) for that novel proposition. Although the indictment itself was not reproduced in *Simmons,*it is apparent that the accused there was charged with forgery of a check (bearing the drawer’s signature, “Eddie Siddon”) under the first degree statute, § 199, and not for forgery of the endorsement which appeared thereon, a charge which would have fallen under § 200 pertaining to forgery in the second degree. The Court’s opinion, however, did not equate the two, and this Court has held that they are not the same. In *Brown v. State,*242 Ala. 485, 486, 7 So.2d 28 (1942), we addressed the distinction:

> While the indorsement is not independent, it is a separate and distinct and different contract from any other feature of the instrument. Our statute [§ 200] emphasizes that distinction and that' the forgery of an instrument is a different offense from the forgery of an indorsement of it. Under our statute, section 200 ... a person who is sought to be convicted for forging an indorsement should be apprised of the fact that it is the indorsement which is involved and not the instrument which is indorsed.

To which we might add, if he is sought to be convicted for forging the instrument, likewise he should be informed that it is the instrument which is involved and not the endorsement.

That is the difficulty with this indictment. It substantially follows the Code form, Number 63, for first degree forgery until after the word “counterfeited,” and then continues with a signature in the name of the payee accompanied by letters and numbers of an identifying nature. Since that endorsement would effect a negotiation if genuine, was it intended to make it a part of the indictment, but under § 200, the second degree forgery statute? As it is represented we cannot make that determination and thus we conclude that it is so unclear that the defendant could not make that determination either. As drawn, the indictment may represent an attempt to charge in one count distinct offenses calling for different punishments, a procedure not condoned. *Goldman v. State,*26 Ala.App. 407, 161 So. 261 (1935). In any case, it does not conform to the requirements of Title 15, § 232, *Alabama Code*which requires the indictment to “state the facts constituting the offense ... in such a manner as to enable a person of common understanding to know what is intended . . .” *Accord, Ex parte Allen,*241 Ala. 137, 2 So.2d 321 (1941).

REVERSED AND REMANDED.

TORBERT, C. J., and JONES, SHORES and EMBRY, JJ., concur.

BLOODWORTH and ALMON, JJ., concur specially.

MADDOX and FAULKNER, JJ., dissent.

BLOODWORTH, Justice

(concurring specially.)

I concur with Mr. Justice Beatty’s assessment of the indictment that it is so unclear that it is impossible to tell whether petitioner is charged with forgery of the check or forgery of the purported indorsement. According to the Court of Criminal Appeals’ opinion, the petitioner’s name appears on both.

*1154Forgery of a check and forgery of an indorsement are different offenses as Mr. Justice Foster pointed out, for a majority of this Court in *Brown v. State,*242 Ala. 485, 7 So.2d 28 (1942). Thus, the indictment fails to apprise the petitioner of the offense so as to enable him to know what is the charge in the indictment. Tit. 15, § 232, Code of 1940.

Additionally, if forgery of the indorsement is the charge which was intended against petitioner, the indictment must plainly charge the forgery of the indorsement. *Brown v. State,*30 Ala.App. 339, 7 So.2d 24 (1942).

ALMON, J., concurs.,

MADDOX, Justice

(dissenting).

I respectfully dissent. The indictment here charges Martin with forgery in the first degree. In *Brown v. State,*30 Ala. App. 339, 7 So.2d 24 (1942), the indictment read:

> “The Grand Jury of said County charge that before the finding of this indictment, that J. R. Brown alias, John Brown with intent to injure or defraud, did falsely make alter, forge or counterfeit an instrument in writing, in words and figures, substantially as follows:

> “ ‘No. 2045 The State of Alabama, Dale County Commissioners Court $532.38, Ozark, Alabama Sept. 30, 1937 Term 193_. Pay to J. H. Morris or Order . Five Hundred thirty two & 38/100 .Dollars for 17741 Feet of Lumber Dist. 3, out of Moneys in the Treasury to the credit of the Road and Bridge Maintenance Fund. To County Treasurer, Dale County, Alabama. Issues Sept. 30, 1937, 193_. Frank 0. Deese, Judge of Probate, Roberts & Son, Birmingham, Ala.’ *And on the back thereof appears the following: ‘J. H. Morris J. R. Brown.’*or, with intent to injure or defraud, did utter and publish as true the said falsely made, altered, forged, or counterfeited instrument in writing, knowing the same to be so made, altered, forged or counterfeited, against the peace and dignity of the State of Alabama.”

> The indictment here is as follows:

*1155

*1156As is plain, except for the description of the instrument, allegedly forged, the charge here is identical with that in *Brown.*

In *Brown,*the court said of the indictment there:

> “The inclusion of the words: *And on the hack thereof appears the following ‘J. H. Morris J. R. Brown ’*in the indictment in this case *did not*charge appellant with the forgery of the name *J. H. Morris*on the ‘instrument in writing’ set out in the indictment.”

The court, in *Brown*said that an indictment such as the one here charges a forgery of the *instrument*(first degree forgery) and that:

“In 26 Corpus Juris, at page 944, is the statement: ‘If the indictment is for the forging of an endorsement it must be set out *accompanied with such averments as will make the offense affirmatively appear.’*(Italics supplied by us).”

I would affirm the judgment of the Court of Criminal Appeals.