Belcher v. State, 4 Div. 318

Decision Date18 March 1975
Docket Number4 Div. 318
Citation56 Ala.App. 688,325 So.2d 195
PartiesGene BELCHER v. STATE.
CourtAlabama Court of Criminal Appeals

George E. Trawick, Ozark, Patterson & Rinehart, Montgomery, for appellant.

William J. Baxley, Atty. Gen., and David W. Clark, Asst. Atty. Gen., for the State, appellee.

DeCARLO, Judge.

Larceny; three years.

The Grand Jury of Barbour County, charged that Gene Belcher '. . . feloniously took and carried away timber to-wit: saw logs a further description of same being unknown to the Grand Jury; being of the total and combined value of, to-wit; $500.00; the personal property of Guice Slawson . . .'

Guice Slawson, manager of Midway Lumber Co., Inc., Louisville, Alabama, contracted with appellant to cut timber at the rate of $40. per thousand. Stumpage was to be paid only when tracts were obtained by appellant.

In the latter part of September or early October, 1973, appellant started cutting on a tract Slawson had acquired from Catherine Davis, situated behind Hubert Tyler's store on Blue Springs Highway. Before Christmas, 1973, Belcher was cutting timber behind Slawson's house and was paid $30. per thousand. Slawson explained the rate was different because he loaded the logs and not Belcher.

Around December 27, 1973, Belcher returned to cutting timber on the Davis place, and according to Slawson, appellant's equipment remained in the woods where the operation continued until January 26, 1974.

On Monday, December 31, Belcher requested money to pay his men, and Slawson gave him $150. During this time Belcher commented he had been unable to haul timber due to rainy weather but had piled the logs already cut.

The week before January 26, 1974, Slawson noticed approximately 5,000 feet of logs piled behind the house of appellant's father and estimated their worth at about $500. He recognized the logs as those being cut off the Davis place. He admitted the logs had no distinguishing marks but were the same kind of pine.

Slawson testified he could not identify logs at a mill as coming from a particular tract but did recognize the logs in question as being from the Davis place. Although he could not absolutely swear they were the same, he maintained they were similar in appearance to those Belcher was unloading.

Slawson further stated the logs were not piled behind the home of appellant's father before Christmas. He was aware, however, there wasn't enough money coming in for the timber he knew to be there.

On January 26, 1974, Slawson confronted appellant about the logs beside his father's place and was told they were bought from Henry Chambers, his foreman. Slawson testified he knew the timber on Chambers' land was cut in 1972, and further, in August, 1973, Slawson had cut and moved the timber on the tract belonging to appellant's father.

During the trial a letter addressed to Slawson from Ralph Reynolds of the Jones-Reynolds Lumber Co., Abbeville, Alabama, was introduced into evidence. It listed these purchase of lumber and pulpwood from appellant:

"Dec. 28, 1973 1555" logs

"Jan. 4, 1974 1217" logs

"Jan. 11, 1974 2558" logs, 3.57 cords pulpwood

"Jan. 18, 1974 3920" logs."

In conclusion, the letter stated checks for these purchases were made to Henry Chambers with no stumpage deductions.

Slawson stated he did not authorize Belcher to make these sales, and he estimated this timber to be worth about $1,100.00.

Charles Arrington was first called by the state and testified he worked for appellant about four weeks from December, 1973 until January, 1974, hauling pulpwood to Abbeville. During his testimony, he recalled the occasion when appellant directed him to haul a load of logs from the Davis tract to the home of appellant's father. When Arrington refused, appellant responded, 'just slip over and I'll carry them.' Arrington stated he rode the truck to town, and Belcher drove off with the logs.

On cross-examination, Arrington admitted signing a statement written by defense counsel, reciting Arrington had not hauled any logs but only pulpwood to Abbeville, and further that Belcher did not ask him to haul logs belonging to Slawson anywhere; that Slawson was told Belcher was going to haul logs to the home of appellant's father, but Belcher was to buy them; and Arrington never hauled any logs because Belcher didn't buy them.

Arrington acknowledged he could not read and that the statement was read to him by defense counsel.

Later appearing as a defense witness, Arrington's testimony reaffirmed the signed statement. On cross-examination, he recanted and admitted riding with Belcher when logs from the Davis place were taken to the home of appellant's father.

When defense counsel specifically asked if the load was pulpwood, Arrington replied, 'I didn't pay no attention to whether it was pulpwood or logs. I suspect it was logs.'

State's witness, Henry Chambers testified he worked for appellant as foreman from right after Christmas, 1973, until the end of January, 1974. During this time Chambers did not cut any of his own timber nor sell any to appellant.

Chambers stated they moved onto the Davis place right after Christmas, but did move to Belcher's place on one occasion and then returned. The four checks drawn on Jones-Reynolds Lumber Co. were brought to him by the appellant. After cashing the checks, Chambers would pay the men and give the balance to appellant who then paid Chambers.

On cross-examination he stated he did not know where the logs were coming from that were sold in his name.

Appellant testified that he cut timber on his father's place in September and October, 1973, and ramped it below the house. Logs remained there two to three months and could not be seen from the road. Belcher explained that loads of these logs were sold in Henry Chambers' name for several different reasons: (1) to keep Slawson's money separate (2) to save on taxes and (3) to provide for payroll expenses. After appellant began cutting timber on the Davis place around August or September, 1973, he moved on and off about three or four times. Belcher further explained that Slawson did not get all of his father's timber, but only about 15 acres. Appellant denied taking any logs from the Davis place to his father's house or directing Arrington to. He further denied taking any logs to Jones-Reynolds Lumber Co., but admitted carrying pulpwood, which under his agreement with Slawson, he could sell to anyone.

Belcher admitted when Slawson reduced the price of logs from $40. to $30. per thousand it made him mad and he stated he would get even.

He explained that 'I owed him some money and I was going to pay him and get even with him by quitting.'

I

Counsel for appellant maintains the court erred in overruling his motion to exclude the state's evidence.

In Meadows v. State, 36 Ala.App. 402, 56 So.2d 789, this court held:

'. . . Larceny is the felonious taking and carrying away of personal property of another with the intent on the part of the taker to convert it to his own use, or to deprive the owner thereof. The offense involves a trespass on the possession of another. Ludlum v. State, 13 Ala.App. 278, 69 So. 255; McKinney v. State, 12 Ala.App. 155, 68 So. 518; Kramer v. State, 16 Ala.App. 456, 78 So. 719; Weldon v. State, 17 Ala.App. 68, 81 So. 846.

'If a person acquires the possession of personal property tortiously, and thereafter...

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2 cases
  • McLoyd v. State
    • United States
    • Alabama Court of Criminal Appeals
    • May 22, 1979
    ...No. "THE COURT: And the verdict was already reached by the jury? "A. Right. "THE COURT: When you came out? "A. It was." In Belcher v. State, Ala.Cr.App., 325 So.2d 195, cert. quashed, Ala., 325 So.2d 199 (1975), this Court quoted Palmore v. State, 283 Ala. 501, 218 So.2d 830 (1969), which s......
  • Belcher v. State
    • United States
    • Alabama Supreme Court
    • January 9, 1976
    ...Belcher for Certiorari to the Court of Criminal Appeals to review and revise the judgment and decision of that Court in Belcher v. State, 56 Ala.App. 688, 325 So.2d 195. Writ quashed as being improvidently All the Justices concur. ...

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