Hill v. State

Decision Date13 June 1972
Docket Number8 Div. 227
Citation48 Ala.App. 240,263 So.2d 696
PartiesDanny HILL v. STATE.
CourtAlabama Court of Criminal Appeals

Arthur G. Groover, Hartselle, for appellant.

William J. Baxley, Atty. Gen. and Richard F. Calhoun, Asst. Atty. Gen., for the State.

TYSON, Judge.

The indictment consists of three counts, charging appellant with grand larceny, buying, receiving, concealing or aiding in concealing stolen property, and embezzlement. Jury trial resulted in a verdict of guilty of embezzlement. Judgment set sentence at eighteen months imprisonment.

Prosecution's witness, H. H. Anders, testified that he operated a used car business in Hartselle, Alabama; that he knew the accused, Danny Hill, and had been knowing him for several years; and that Hill had worked for him for about five or six months in 1969 at his business in Hartselle. In October or November of 1969, Hill purchased a 1956 Chevrolet from Anders while working at his used car lot, but Hill wrecked the Chevrolet and asked Anders for another car. Anders testified he loaned Hill a 1962 Pontiac and told him to drive it for a week 'until he got a payday at the Ford place and buy it if he liked it.'

On December 2, 1969, Hill brought the Pontiac back, after keeping it about a week, and said that it was not any good and he wanted another car. Anders had a 1962 repossessed Valiant which he offered to Hill 'to try it out and see if he wanted it, and if he did he would pay me $50.00 down and I would sell it to him.'

It was Anders' testimony that appellant was to take the Valiant on a 'try out basis,' and that the appellant did not pay him any money upon receipt of the vehicle, nor was there a contract of any kind. Anders said he gave the keys to appellant, and that was the last he saw of the Valiant.

It was Anders' testimony that he tried to locate appellant and that one of his employees, one Jack Brown, did in fact locate Hill some two months after the transaction occurred.

Anders also testified that 'after they arrested him he come up there and wanted to pay it out.'

On cross-examination, Anders stated that he had loaned the appellant cars on several occasions when the appellant was working for him.

Appellant took the stand in his own behalf. He testified that he used to work for Mr. Anders and had known him for quite some time; that before the incident in question had occurred, Mr. Anders had sold or loaned him used cars on several occasions, and that there had never been any question about those transactions. He testified that he received a receipt for the 1962 Pontiac, but that he had misplaced it.

It was appellant's testimony that on December 2, 1969, he drove the Pontiac to Anders' car lot for the purpose of trading it because it was 'in bad shape.' He stated that he told Anders he wanted to trade the Pontiac and Anders 'told me to look at what he had out there and then he said he had that 1962 Valiant out there just repossessed, I could look at it and try it out.' Appellant said it was his understanding he was trading the Pontiac for the Valiant. Anders retained no security interest in the Valiant automobile.

Appellant stated he had returned to the used car lot on several occasions since the incident in question, and Anders had not mentioned the car until recently, when he (appellant) brought up the matter. And further, that since the time in question, he had traded a tox of wrenches to Anders in exchange for a 1963 Ford.

Jack Brown, a part-time employee of Anders, testified that on December 2, 1969, he saw appellant drive a 1962 Pontiac on Anders' lot. He heard appellant say, concerning the Pontiac, that 'the motor was ruint in it and it was knocking and he wanted to try another one out.' Brown said he saw appellant leaving the car lot in the Valiant. Subsequent to this, Brown, apparently under Anders' orders, located appellant at a trailer court where he was living, and, according to Brown, 'told Danny that Mr. Anders wanted the car back and he said it was sitting over at the foot of the hill, tore up and I asked him where it was, and we would pull it in and save a lot of trouble, but he never would tell me where it was.' Hill said 'he would straighten it out with Mr. Anders himself.'

There was testimony by a Stanley Kelsco who said he was at the lot on December 2, 1969, when this incident occurred. Kelsco saw the appellant and Anders engaged in a conversation concerning cars, but was not close enough the hear the details. He did see Anders give some keys to appellant.

Leldon Barrett, another witness for the State, testified that he saw the appellant drive on the lot on December 2, 1969, and he assisted appellant in transferring his personal belongings from the Pontiac to the Valiant. He did not hear the conversation between the appellant and Anders.

No motion for new trial was filed in this cause.

I

After the State had rested its case in chief, the defendant moved to exclude the State's evidence on the ground that 'it prima facially doesn't show a case against the defendant, and furthermore on every count of the indictment, it shows a three hundred dollars or more, and that was never proved at all that it was stealing a car in the value of three hundred dollars, nor would there be an employment for three hundred dollars or more.'

The court allowed the State to reopen its case, over objection, for the purpose of proving the value of the car. The reception of additional evidence after the State has closed, but before final argument, to supply an omission, is within the discretion of the trial judge. Title 7, Section 252, Code of Alabama 1940 (Recompiled 1958); Miller v. State, 21 Ala.App. 653, 111 So. 648.

Following testimony as to the value of the car, the defendant again moved to exclude State's evidence 'in that no crime has been shown by their case.' Inasmuch as the evidence would afford a reasonable inference to support a finding by the jury that the crime of grand larceny, or larceny by trick or fraud, was committed by appellant, the trial court was not in error in overruling appellant's motion. Reynolds v. State, 31 Ala.App. 259, 15 So.2d 600; Sullivan v. State, 43 Ala.App. 302, 189 So.2d 593; Turner v. State, 266 Ala. 250, 96 So.2d 303.

II

Appellant cites as error the refusal of the trial court to give the requested affirmative charge as to Count III of the indictment, charging embezzlement.

Title 7, Section 273, Code of Alabama 1940 (Recompiled 1958), reads as follows:

'Charges moved for by the parties.--Charges moved for by either party must be in writing, and must be given or refused in the terms in which they are written; and it is the duty of the judge to write 'given' or 'refused,' as the case may be, on the document, and sign his name thereto; which thereby becomes a part of the record.'

The record does not show that the trial judge marked any of the charges 'given' or 'refused,' nor did he endorse such charges in any manner, even though the court read the charges to the jury. Counsel for appellant does not argue in brief that the trial judge refused to endorse the requested charges. Having failed to comply with the statutory requisites, we cannot review the refused affirmative charge, or any other refused charges, as such are not considered as part of the record. Fendley v. State, 36 Ala.App. 149, 53 So.2d 397; Jackson v. State, 32 Ala.App. 388, 26 So.2d 423; Mason v. State, 16 Ala.App. 405, 78 So. 321. Further, by the clerk inserting the charges in the record, such does not make them a part of same, lacking the requisite endorsement of the trial judge. Berry v. State, 231 Ala. 437, 165 So. 97; Gable v. State, 31 Ala.App. 280, 15 So.2d 594.

III

Although at no time did appellant's counsel challenge the sufficiency of the indictment at the trial level, we note here that the particular count in the indictment to which the jury referred their verdict fails to allege an essential element of the offense of embezzlement. Count III of the indictment reads as follows:

'Count III

'The Grand Jury of said county further charge that before the finding of this indictment Danny Hill, whose name is to the Grand Jury otherwise unknown, did embezzle or fraudulently convert to his own use, with intent to embezzle or fraudulently convert to his own use, a motor vehicle, to-wit, one 1962 Valiant automobile of the value of $300.00, the personal property of H. H. Anders, against the peace and dignity of the State of Alabama.'

The indictment fails to specify the relationship between the appellant and the prosecuting witness, Anders, at the time of the alleged commission of the offense charged. Title 14, Section 126, Code of Alabama 1940 (Recompiled 1958); Benefield v. State, 286 Ala. 722, 246 So.2d 483.

The Supreme Court of Alabama in Holt v. State, 86 Ala. 599, 5 So. 793, stated:

'The general rule in criminal pleading requires that every fact and circumstance which enters into and constitutes an essential ingredient of the offense shall be set forth in the indictment; otherwise no offense is charged. If the indictment is framed under a statute which defines the offense created, and prescribes its constituents, it must allege in the words of the statute, or other words equivalent in meaning, all the statutory elements which are essentially...

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7 cases
  • Colston v. State
    • United States
    • Alabama Court of Criminal Appeals
    • November 4, 1975
    ...both sides had rested. However, no arguments had begun when the trial judge allowed the state to reopen their case. In Hill v. State, 48 Ala.App. 240, 263 So.2d 696 (1972) Judge Tyson, speaking for this Court, 'The Court allowed the State to reopen its case, over objection, for the purpose ......
  • Napier v. State
    • United States
    • Alabama Court of Criminal Appeals
    • August 31, 1976
    ...a statutory criminal offense. Knight v. State, 152 Ala. 56, 44 So. 585; Adams v. State, 48 Ala.App. 281, 189 So.2d 354; Hill v. State, 48 Ala.App. 240, 263 So.2d 696. The prosecution in the instant case was pursuant to the provisions of Title 14, Section 126, Code of Alabama 1940. Mr. Justi......
  • Maund v. State
    • United States
    • Alabama Court of Criminal Appeals
    • July 25, 1978
    ... ... Because of failure to comply with Title 7, § 273, this court may not consider the charges on appeal even though the charges appear in the record. Watkins v. State, 50 Ala.App. 111, 277 So.2d 385, cert. denied, 291 Ala. 801,277 So.2d 389 (1973); Hill v. State, 48 Ala.App. 240, 263 So.2d 696 (1972); Barnwell v. Murrell, 108 Ala. 366, 18 So. 831 (1895) ...         Exceptions to the oral instruction of the court must be taken in the presence of the jury and before the jury retires so that the trial judge will have an opportunity to make ... ...
  • Airhart v. State
    • United States
    • Alabama Court of Criminal Appeals
    • December 4, 1979
    ...criminal offense. Knight v. State, 152 Ala. 56, 44 So. 585 (1907); Napier v. State, 337 So.2d 62 (Ala.Cr.App., 1976); Hill v. State, 48 Ala.App. 240, 263 So.2d 696 (1972). The prosecution in the instant case was pursuant to the provisions of Alabama Code, § 13-3-20 (1975). Strict constructi......
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