Kellett v. State, 7 Div. 209
Decision Date | 21 September 1990 |
Docket Number | 7 Div. 209 |
Citation | 577 So.2d 915 |
Parties | William Tumlin KELLETT, Sr. v. STATE. |
Court | Alabama Court of Criminal Appeals |
Charles A. McGee, Ft. Payne, for appellant.
Don Siegelman, Atty. Gen., and Beth Jackson Hughes, Asst. Atty. Gen., for appellee.
The appellant was convicted of four counts of theft of property in the first degree, in violation of § 13A-8-3, Code of Alabama (1975), three counts of theft of property in the second degree, in violation of § 13A-8-4, Code of Alabama (1975), and six counts of possession of a forged instrument in the second degree, in violation of § 13A-9-6, Code of Alabama (1975). The appellant was sentenced to 10 years in the State penitentiary on each count of the indictment, the sentences to run concurrently. Pursuant to the Split-Sentence Act, the trial court ordered the appellant to serve three years of the sentence in the State penitentiary with the remainder of the sentence to be served on probation. The appellant was further fined a total amount of $25,000 (one-thirteenth of that amount on each count) and was additionally ordered to pay $16,700 in restitution and $325 to a victims compensation fund.
The record indicates that the charges in the present case stemmed from the appellant's role, as agent for several insurance companies, in insuring the City of Fort Payne and the DeKalb-Cherokee Counties Gas District. The City of Fort Payne and the DeKalb-Cherokee Counties Gas District had been experiencing an "insurance crisis," in that there had been four natural gas pipeline explosions, which resulted in property damage, one serious injury, and three fatalities. Moreover, several lawsuits had been filed against the Gas District. Thereafter, the District's policy was cancelled and the appellant, who had acted as agent for the insurance company which had formerly insured the District, had a difficult time finding a company to write the Gas District's liability coverage. The appellant was eventually able to find coverage through various surplus lines brokers. There was testimony at trial which indicated that an agent typically splits the commission on premiums with the broker, when dealing with insurance coverage through a surplus lines broker. Thus, instead of making the 20 percent commission on the premiums, which the appellant had made when he was agent for the District's former insurance company, the appellant would only make a 10 percent commission in brokering the insurance.
The appellant's defense at trial was that he had no intent to deceive or defraud anyone. He testified that he had informed both Bill Wright, the manager of the Gas District, and Fred Purdy, the Mayor of the City of Fort Payne, that he could not afford to handle the coverage unless he could make an additional commission on the policies. He further testified that the additional charges were acknowledged and agreed upon. Bill Wright testified that he discussed obtaining insurance with the appellant and that the appellant informed him that he must have some additional payment above the commission, because of the required split in pay with a broker. Wright testified that he agreed to pay an additional amount in order to get the insurance which the Gas District needed. He testified that he was not deceived about the extra amounts and that Fred Purdy, the Mayor of the City of Fort Payne at the time of the alleged offense, was present and took part in these discussions. The following transpired outside the presence of the jury during Wright's testimony:
Moreover, during the testimony of an employee of the appellant's insurance agency, the following transpired:
After the agreement was made for the insurance coverage for the Gas District and the City of Fort Payne, invoices were sent by the appellant for premium payment. In most cases, the invoices were paid in full four to six weeks before the actual policies were issued by the insurance companies. After the policies were issued, alterations were made to the policies, reflecting a higher premium than that charged by the issuing insurance company. The evidence was undisputed at trial that two of the appellant's employees actually made the alterations.
The following transpired during the testimony of one of the appellant's employees:
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