Benefield v. State
Decision Date | 03 October 1967 |
Docket Number | 5 Div. 677 |
Citation | 44 Ala.App. 339,208 So.2d 449 |
Parties | Earl BENEFIELD v. STATE. |
Court | Alabama Court of Appeals |
Lewis H. Hamner, Jr., Roanoke; Hooton & Hooton, Roanoke, on rehearing, for appellant.
MacDonald Gallion, Atty. Gen., and Robt. F. Miller, Asst. Atty. Gen., For the State.
Earl Benefield was found guilty of the larceny of an automobile belonging to Marcille Benefield, his former wife.
The state's evidence tends to show that Earl and Marcille were divorced in May of 1966 and that the divorce was obtained at Earl's insistence. The parties were the parents of four minor children. As a part of the alimony settlement Earl gave to Marcille a bill of sale to a 1963 model Buick automobile; that Marcille refused to sign the divorce papers until the bill of sale was signed by defendant. The bill of sale was prepared under defendant's instructions by Charlene Calhoun, defendant's office helper. This instrument was introduced in evidence and appears in the record as State's Exhibit I. The price of the automobile is listed at $2500.00, and the testimony shows its value as $2200.00 or more.
The divorce was granted in May 1966. On July 19, 1966, defendant, who operated a used car business, and his employee, James Bassett, brought a Chevrolet Malibu automobile and left it at Marcille's home. They drove the Buick away over the protests of Marcille.
The evidence for defendant tends to show that he can neither read nor write; that in May, 1966, he went with Marcille to the office of an attorney to discuss the matter of a divorce; that an agreement was reached whereby he would continue to furnish Marcille and the children dependable transportation as he had in the past, so long as she remained unmarried, and he would allow her to continue to use the Buick that was already in her possession; that she asked for some kind of 'identification' to use while she was driving the car.
The defendant's evidence further shows that the Buick automobile belonged to the Bank of Wadley, Wadley, Alabama; that appellant had owned the car and sold it to one Bobby Benefield, who financed it through the Bank of Wadley; that the bank had repossessed the car and placed it on defendant's used car lot for sale by Earl Benefield as the bank's agent; that when it was brought to the bank's attention that the car was in Marcille's possession the bank instructed Earl to place the car back on his lot.
In rebuttal Marcille Benefield testified that at the time she signed the answer and waiver in the divorce case she did not know of the existence of a mortgage or other encumbrance against the automobile or any debt due the Bank of Wadley.
The evidence presented a question for the jury to determine as to whether the taking of the automobile was done with a felonious intent, or whether the taking was under a bona fide claim of right, and was sufficient to sustain the verdict. The motion for a new trial was properly refused. Ruffin v. State, 30 Ala.App. 344, 6 So.2d 455, cert. den., 242 Ala. 345, 6 So.2d 456.
The court sustained the state's objections to the following questions propounded by the defendant to Marcille Benefield on cross examination.
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The court also sustained the state's objection to the following question propounded to the defendant:
Defendant's first insistence of error in brief is that the above questions were designed to elicit evidence in support of his defense, 'that in connection with the pending divorce it was the agreement between himself and Mrs. Benefield that he was to keep her dependable transportation like I have in the past, as long as she was single.' That Mr. Benefield was in the used car business and had provided various cars for the family use over the years; that the Buick was merely one car in a series which would fulfill his continuing obligation to keep her in dependable transportation as long as she was single; that he left another car there when the Buick was taken away; that the instrument referred to as a bill of sale was a document prepared merely to show 'some identification to the car while she was driving it' and thus was not an instrument intended as a transfer of legal title; and therefore under the agreement between the parties he had the right to substitute other cars for the Buick in question; or, at least, he had an honest belief that he had the right to so take the Buick.'
'Also supportive of or related to this defense were questions propounded to Mrs. Benefield designed to show that she recognized that there was an agreement concerning allowing her to use various cars in that the difficulty began because of dissatisfaction with the substitute car, a Malibu, to which state's objections were sustained.' These questions are as follows:
Defense counsel's brief states further: 'Also along this line and to show bias were questions to which objections were sustained.'
The next insistence in brief is that These questions are as follows:
To Mrs. Benefield, on cross examination:
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On direct examination of defendant's witness Paul Hooton, who was one of the attorneys in the divorce action:
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'Q. The conversation that took place there in your office, Mr. Hooten, regarding transportation, will you tell the court and jury, as best you can recall, what was said with regard to this particular automobile?
'A. She raised the question that transportation up to that time hadn't been adequate in her opinion. And he asked her then 'what about this car that you're driving now?' I don't know how long she had been driving it, but anyway, she was driving a particular car at that time. And I think he may have said these words to her. 'Marcille, you know that this car belongs to the Bank of Wadley.'
In sustaining the objections to the questions propounded to Marcille Benefield, set out hereinabove, the court stated:
In sustaining the state's objections to the questions to Mr. Hooton the court said:
For the same reason the court refused to allow the introduction in evidence of the mortgage given to the bank by Bobby Benefield.
We find no error in the court's rulings. The questions asked Mrs. Benefield concerning other automobiles called for testimony immaterial to the issues involved.
In the absence of fraud, mistake, or misrepresentation, parol evidence will not be received to contradict or vary the terms of the contract for the sale of the automobile. Mask v. Evers, 30 Ala.App. 420, 7 So.2d 95.
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