Hawes v. State
| Decision Date | 31 August 1926 |
| Docket Number | 3 Div. 541 |
| Parties | HAWES v. STATE. |
| Court | Alabama Court of Appeals |
Rehearing Denied Dec. 7, 1926
Reversed on Mandate May 10, 1927
Appeal from Circuit Court, Montgomery County; Walter B. Jones Judge.
J.C Hawes was convicted of grand larceny and embezzlement, and he appeals. Reversed and remanded per mandate from Supreme Court, 112 So. 761. Certiorari granted by Supreme Court.
Hill Hill, Whiting, Thomas & Rives, of Montgomery, for appellant.
Harwell G. Davis, Atty. Gen., and Robt. G. Tate, Asst. Atty. Gen., for the State.
There was a general verdict of guilty as charged in the indictment, and, from the judgment of conviction pronounced and entered, in accordance with such verdict, this appeal was taken.
The indictment contained three counts--the first count being for the larceny of an automobile; the second, for the embezzlement of the same automobile; and the third count charged larceny of $100 in money from the person of P.L. Hudson.
The demurrers to the indictment were properly overruled.
In each count of the indictment P.L. Hudson is named as the alleged injured party. The evidence, without conflict, disclosed that the said P.L. Hudson, a resident of Pine Level, Montgomery county, Ala., was sent to Montgomery by his father to purchase an automobile with money belonging to his (Hudson's) father; that he met the defendant and rode around the city in a secondhand Ford car, which he finally purchased from defendant for the $100 his father had sent, and Hudson testified he gave the money to defendant Hawes, and that defendant then told him he had to go to the courthouse to get the papers on the car, and left with the money and the car; that he failed to return, and was not seen by Hudson again until some time later when he was arrested. Hudson testified "he never got back his money or the car."
It is here insisted that the defendant was entitled to the general affirmative charge as to each count of the indictment, which charges were requested in writing, upon the theory that the undisputed evidence disclosed that the car or money in question was not the property of P.L. Hudson, but was the property of the father of P.L. Hudson, etc.
These several insistences cannot be sustained. The undisputed facts constituted P.L. Hudson the bailee, the money in question was in his possession, and the ownership was properly laid in him. Fowler v. State, 100 Ala. 96, 14 So. 860; Viberg v. State, 138 Ala. 100, 35 So. 53, 100 Am.St.Rep. 22; Ex parte Economu, 211 Ala. 237, 100 So. 85.
The state introduced as a witness one J.P. Avant, who testified that he took Hudson in a car with him to try to find defendant, and, after driving all around town and back up on Adams street they found the car in question on the 900 block of Adams street, and found defendant in the house, and that, upon confronting him with Hudson, the defendant denied all knowledge of him, and insisted he had never seen him before; and further: "We came on to the office, and he still denied it bitterly, that he had ever seen this man or had anything to do with him, or been about him before until right now." In this connection the defendant, testifying as a witness in his own behalf stated "that he didn't think he told Mr. Avant that he had never seen Hudson before; that when Avant came in he was drinking coffee trying to get sober." He also testified "that if Hudson had paid him any money he didn't know anything about it; that he didn't know whether he gave him the money or not; *** that he didn't know whether he sold the car or not."
The court refused to allow defendant to show by witness Rambo "that on this particular day the witness Rambo saw the defendant about 12 o'clock noon in front of the Standard Auto & Supply Company, and that defendant, Hawes, asked him if he had seen a man named...
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