Fuller v. State

• Decision Date: 14 December 1948
• Docket Number: 2 Div. 784.
• Citation: 39 So.2d 24,34 Ala.App. 211
• Parties: FULLER v. STATE.
• Court: Alabama Court of Appeals

39 So.2d 24

34 Ala.App. 211

FULLER v. STATE.

2 Div. 784.

Alabama Court of Appeals

December 14, 1948

Rehearing Denied Jan. 11, 1949.

D. M. Boswell, of Butler, and Ward & Ward Tom B. Ward, and Tom B. Ward, Jr., all of Tuscaloosa, for appellant.

A. A. Carmichael, Atty. Gen., and L. E. Barton Asst. Atty. Gen., for the State.

HARWOOD Judge.

This appellant's jury trial on an indictment charging him with larceny of 1271 feet of hardwood logs of the value of $50.84 resulted in a verdict of guilty and the imposition of a sentence to the penitentiary for a term of five years.

Evidence of substantial probative value tending to establish the appellant's guilt was given by only two of the witnesses introduced by the State, namely Mr. R. A. Mann and Mr. J. T Culpepper.

Mr. Culpepper has been indicted for the larceny of the same loge alleged to have been stolen by this appellant, and under the evidence adduced by the State is an accomplice of this appellant.

Mr. Mann, a saw mill operator, testified that he had bought the timber but not the land on the Ganguet place in Sumter County, Alabama in 1946.

He and appellant entered into an agreement whereby appellant was to cut this timber and haul the logs to Mr. Mann's saw mill, which was about 14 miles distant from the timber. Under the agreement Mr. Mann was to furnish the teams and trucks, and appellant was to receive $15 per thousand feet of logs delivered to the mill.

After the logging operation was under way Mr. Mann discovered that one load of logs had been sold to the Great Southern Box Company by J. T. Culpepper, employed by the appellant as one of the men to haul the logs from the Ganguet tract to Mr. Mann's mill.

Mr. Mann apprised the appellant of this fact and according to Mr. Mann: 'I told him about the load of logs that went to the veneer mill that Mr. Culpepper carried there, and I said 'Mr. Culpepper admits he carried them there and he also implicates you.''

Mr. Mann said that 'At that particular time he (appellant) only hesitated just a minute or two and drove right off and hollered back he would see me * * *.'

On cross examination Mr. Mann testified that at this conversation the appellant 'got mad' at him, and said there was going to be a settlement and a reckoning.

The above conversation was had between Mr. Mann and the appellant on 12 October 1946. The next morning again, according to Mr. Mann, the appellant 'drove up in front of my office about nine o'clock in the morning and got out of his car. I was standing in front of my office, and he went up on the porch and says, 'I got your money,' that 'that boy admitted to me he did take those logs and here's your money,' and he counted the money out $50.84 for that load of logs, and I gave him a receipt for it. He left and that was all that was said about it at that time.'

The witness J. T. Culpepper testified that the appellant had employed him to drive a truck and haul logs from the Ganguet tract to Mr. Mann's mill. He was so employed for about two weeks in the fall of 1946. During his employment he, at the appellant's instructions, carried one load of logs to the Southern Box Company mill in York, Alabama, and sold the same to the Box Company. He received a check, payable to himself, in the amount of $50.84, for this load of logs. He endorsed and cashed the check, and turned the entire proceeds over to the appellant.

Testifying in his own behalf the appellant denied he had ever told Culpepper to haul any logs to the Southern Box Company, or to any place other than Mr. Mann's mill. He likewise denied he had received from Culpepper any part of the proceeds of the load of logs sold by the Culpepper to the Box Company.

In his argument appellant's counsel contended that under the facts above shown that appellant might, if the State's evidence be believed under the required rule, be guilty of embezzlement, or of the statutory offense of trespass by cutting timber, as denounced by Section 427, Title 14, Code of Alabama 1940, but that the facts of this case do not constitute larceny.

It is inferable from the evidence that after these trees were cut the logs were 'bunched' prior to being hauled away. We conclude therefore that there can be no doubt but that the logs having been severed from the land, and 'bunched' for some indefinite time prior to being hauled away were personalty, and therefore subjects of larceny.

From the meagre facts presented as to the duties and liabilities of the parties under the agreement between Mr. Mann and appellant we infer that this appellant had the right to enter the tract of timber, cut trees, and haul the logs secured therefrom to Mann's mill. Appellant's compensation was dependant on the amount of logs delivered at the mill. No duty to deliver any certain amount of logs was imposed on the appellant. He might fail to deliver any logs, and in nowise breach the agreement. It would appear that the agreement merely gave appellant a license to enter Mann's tract of timber and cut trees, the logs procured thereby to be delivered by appellant to Mann's mill. Under the facts now disclosed by the record we conclude that appellant's status as to the logs was that of a custodian, rather than a bailee. His conversion of the logs if done with a felonious intent constituted larceny. Brown v. State, 30 Ala.App. 27, 200 So. 630; Washington v. State, 106 Ala. 58, 17 So. 546; Sweeney v. State, 25 Ala.App. 220, 143 So. 586.

If the conviction in this case is to be sustained it must rest upon the testimony of the witness Culpepper, clearly an accomplice of this appellant under the evidence presented. A serious question arises as to the sufficiency of the evidence presented by the State tending to corroborate Culpepper's testimony. Only Mr. Mann gave any testimony that can be considered as tending toward such required corroboration, and this consists of Mr. Mann's account of his conversation with the appellant on 12 October 1946, and the appellant's conduct the following day in offering to and actually paying for the logs converted by his truck driver Culpepper.

In Sorrell v. State, 249 Ala. 292, 31 So.2d 82, 83, Justice Simpson wrote: 'The corroboration necessary to support the testimony of an accomplice must be of some fact tending to prove the guilt of the accused. It is not sufficient if it is equivocal or uncertain in character and must be such that legitimately tends to connect the defendant with the crime. It must be of a substantive character, must be inconsistent with the innocence of the accused and must do more than raise a suspicion of guilt.' Numerous authorities from this and other states are cited in support of the above enunciated principle.

Measured by the above test we conclude that Mr. Mann's account of the conversation with the appellant on 12 October contains no inferences of sufficient probative value to establish a corroboration of Culpepper's testimony. According to Mr. Mann this conversation was a hurried one. The appellant got mad, and said there would be a reckoning and a...