Jones v. State
| Decision Date | 19 August 1975 |
| Docket Number | 8 Div. 645 |
| Citation | 56 Ala.App. 444,322 So.2d 735 |
| Parties | Harold JONES v. STATE. |
| Court | Alabama Court of Criminal Appeals |
Bryce U. Graham, Tuscumbia, for appellant.
William J. Baxley, Atty. Gen. and David Dunn, Asst. Atty. Gen., for the State.
The four-count indictment charged the appellant in two counts with the grand larceny of eight cows, the personal property of Moulton Stockyards, Inc., or alternatively with the grand larceny of said cows, the personal property of Jack Owens. Counts three and four charged the appellant with obtaining the said eight cows by false pretense from Jack Owens, and alternatively from the said Moulton Stockyards, Inc.
No demurrer was interposed to this indictment. The jury brought in a general verdict of guilty as charged in the indictment, and then assessed the value of the property described in the indictment at $1906.00. 1 The appellant's motion for new trial challenging the weight and sufficiency of the evidence was overruled.
Jack Owens testified that he was the owner and operator of Moulton Stockyards, Inc., in Moulton, Alabama. He said he knew the defendant, Harold Jones, and that he ahd been at the 'Salesbarn' of Moulton Stockyards, Inc., bidding on cattle on September 14, 1973, and had been the highest bidder on eight head of cattle. Owens stated that all sales were for cash, and governmental regulations required that all cattle sold be paid for within seventy-two hours. Anyone seeking credit would have to have it authorized by him, and he did not extend any credit to Jones, nor did he authorize the delivery of the cattle to him before he paid for them. Owens said Jones had never paid him for the cattle in question, that he still owed the full purchase price of $1906.00.
On cross-examination, Owens stated that the cattle in question had been entered in the Stockyard's books under 'Accounts Receivable,' and that this was where sales that had not been paid were kept. Owens said Jones returned five or six weeks later to discuss the matter, at which time he told the appellant he had not paid for the cattle, but did not accuse him of stealing them. At this time, the appellant claimed that he had paid for the cattle. Owens stated that sometime after this meeting he swore out a warrant for Jones' arrest.
On redirect, Mr. Owens was shown a yellow 'Purchaser's Release,' listing the cattle in question. Across the bottom appeared the words, 'Paid Cash, 9--14--73, Check cancelled,' but Owens said this was not his handwriting, and he had not authorized anyone else to write it on there.
Diane Cameron testified that she was the daughter of Jack Owens, that she had worked at the Moulton Stockyards on September 14, 1973, as a clerk with the responsibility of taking in the money and checks for the payment of cattle sold each day and giving the customers their releases. She said that for each sale a 'Purchaser's Release' was made out in quadruplicate, 'a green copy for the veterinarian, a white one, which was kept on file in the office, a yellow copy for the purchaser, and a pink copy, which was sent to the barn as a load-out copy.'
On September 14, 1973, Harold Jones came to the window where she was working and said that he wanted to pay for the cattle he had just bid on. Mrs. Cameron got his bill and added up the price. The appellant then asked her for a check, but it was on an out-of-town bank, and she did not have one. He said he had one out in the truck, so she tore apart the bill and gave him his yellow copy, thinking he would be right back, but he did not on that day, or any other day, pay for all, or any part, of the cattle by cash or check. Mrs. Cameron said some writing had been added to the bottom of the appellant's copy of the 'Purchaser's Release,' and the writing was not hers, nor did she recognize it as that of anyone else who worked in the office or 'Salesbarn.' She said if Harold Jones had paid her, she would have written 'Paid Cash' on the top copy of the bill, and it would have appeared on all four sheets rather than just on the purchaser's copy.
On cross-examination, Mrs. Cameron stated that when the appellant came back several weeks later, he told her father that he had originally paid the account with a check, but after he received a call from the office notifying him that payment had not been received, he cancelled the check, returned to the office and said he paid cash.
John Moses testified that he worked at the 'Salesbarn' at Moulton Stockyards. On September 15, 1973, he loaded the eight cattle in question for Harold Jones, or his brother, William Jones. Because of a close family resemblance between the brothers, Moses could not be sure which one. He said no one paid him any money at the time of the loading.
Braxton Craig testified that he was employed by Russellville Production Credit Association. On Friday, September 14, 1973, after the sale, he talked with the appellant, Harold Jones, and agreed to finance the purchase of eight cows.
Mike Sprinkle was also employed by Russellville Production Credit Association. He stated that the appellant came to his office on September 18, 1973, at which time loan papers were signed to finance the purchase of eight cows. Sprinkle gave Harold Jones a Russellville Production Credit Association check in the amount of $1906.00. Russellville Production Credit Association took a mortgage or lien on the cattle.
Jimmy Horton testified that he was a cashier with the Citizens Bank in Moulton, and that he was familiar with the appellant's account. During his testimony several bank ledger sheets, showing the status of this account, from August to December of 1973, were introduced into evidence. These records showed a balance of $145.00 in Jones' account on September 14, 1973, and a deposit of $1906.00 on September 18, 1973. The State also introduced a stop payment order filed by the appellant with the Citizens Bank on October 27, 1973, on a check made payable to Moulton Stockyards in the amount of $1906.00, and dated September 14, 1973. Horton stated that he had been unable to locate the check, which was the subject of the stop payment order. He also testified that a replacement check had not been issued. He also testified that the appellant had done his banking with him for the past four or five years.
The appellant's motion to exclude the State's evidence was overruled.
The appellant presented no evidence at trial. The motion for new trial was overruled, and also his request for the affirmative charge was denied by the trial court.
The appellant contends that the trial court erred in overruling his motion to exclude the State's evidence, and then in denying his request for the affirmative charge, as well as in overruling his motion for new trial.
Larceny is the felonious taking and carrying away of the 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. Higgs v. State, 113 Ala. 36, 21 So. 353; Moulden v. State, 47 Ala.App. 573, 258 So.2d 915; Armstrong v. State, 49 Ala.App. 396, 272 So.2d 603.
In Murchison v. State, 32 Ala.App. 427, 26 So.2d 622, former Presiding Judge Carr observed:
'Confusion and difficulty sometimes arise in an effort to distinguish the three kindred crimes, larceny, false pretenses, and embezzlement. The Massachusetts Supreme Court in Commonwealth v. Barry, 124 Mass. 325, makes the distinction very clearly. Therein the court said:
'The text writer in 35 C.J.S. False Pretenses § 3, p. 638, states the difference between larceny and false pretenses to be:
"The crime of obtaining money or goods by false pretenses is closely allied, or analogous, to that of larceny, and it has been said that the statutes denouncing it and like offenses were designed for the fuller protection of personal property and in aid of the laws against larceny and theft. However, the two offenses are generally distinguishable, although the distinction is very fine where the obtaining of the money or property is accomplished by fraud, trick, or device. The distinction between the crimes of obtaining by false pretenses and larceny lies in the intention with which the owner parts with the property; if the owner, in parting with the property, intends to invest accused with the title as well as the possession, the latter has committed the crime of obtaining the property by false pretenses, but if the intention of the owner is to invest accused with the mere possession of the property, and the latter, with the requisite intent, receives it and converts it to his own use, the crime is larceny.'
'This court in Reynolds v. State, 31 Ala.App. 259, 15 So.2d 600, approved the rule of demarcation outlined above.'
Moreover, in McKinney v. State, 12 Ala.App. 155, 68 So. 518, we find:
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