Lambert v. State

• Citation: 55 Ala.App. 242,314 So.2d 318
• Decision Date: 22 April 1975
• Docket Number: 4 Div. 305
• Parties: Paul Wesley LAMBERT v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 318

314 So.2d 318

55 Ala.App. 242

Paul Wesley LAMBERT v. STATE.

4 Div. 305.

Court of Criminal Appeals of Alabama.

April 22, 1975.

Rehearing Denied May 6, 1975.

Myron H. Thompson, Dothan, for appellant.

William J. Baxley, Atty. Gen. and Joseph G. L. Marston, III, Asst. Atty. Gen., for the State.

BOOKOUT, Judge.

False pretense: sentence, three years.

Appellant was indicted on March 22, 1974, by the Grand Jury of Houston County, charging that he:

'. . . did falsely pretend to Mary Jones, with intent to defraud that the sale price of one fishing reel was $2.99 and by means of such false pretense obtained from the said Mary Jones, one fishing reel of the value of $44.88, . . .'

Arraignment was held on April 8, 1974 and appellant entered a plea of not guilty. Jury trial was April 16, 1974, and he was found guilty. Appellant is represented here by court appointed counsel.

The State's evidence presented at trial showed that the appellant purchased from West Brothers Corporation a $44.88 fishing reel for $2.99 and a $54.88 fishing reel for $12.88 by switching price labels on some of the store merchandise.

The State's first witness, Faye Moss testified that she was working at West Brothers store in Dothan on the afternoon of Saturday, March 9, 1974. She stated that she saw the appellant enter the store, pick up a buggy and begin to shop. She was later relieved of her checkout duties and began to follow and observe the appellant. She observed Lambert pick up two reels in two boxes off a counter and put them into his shopping buggy. She stated further that the appellant next walked over to some Coleman lanterns, sticker priced at $12.88, took the sticker price off one of the lanterns and then, 'reached down into the buggy and messed around with one of the boxes,' of reels. He then walked over to some 202 Zebco reels, sticker priced at $2.99, and again reached down into his buggy and, 'fooled around one of the boxes.' She also stated that the appellant had visited West Brothers on the prior Monday, without purchasing anything and that she and other employees had been specially alerted to look out for him should he enter the store again.

The next witness, Janet Bowen said she was working at West Brothers on March 9, 1974, and also observed the appellant enter the store, move around to other departments, later go to the sporting goods department and pull the stickers off the lantern and the Zebco 202 reel and place them on the reels in his shopping cart. Her testimony closely paralleled that of Faye Moss. She also stated that she had been alerted by the store supervisor, 'to watch for' appellant Lambert. She identified the two reels and the two stickers marked State's Exhibits 1 and 2.

Faye Parramore next testified for the State. She was an employee at West Brothers store on March 9, 1974. Her testimony was mainly that Janet Bowen told her the appellant was in the store and she called her husband, an Alabama State Trooper, and asked him to come to the store. She only observed the appellant pushing his cart around the store and did not see any of the acts described by prior witnesses. Appellant's counsel moved to exclude Faye Parramore's testimony as not being material, but the motion was denied.

The next State witness, Mary Jones, a cashier at West Brothers, testified that on the afternoon of March 9, 1974, the appellant came through her checkout line to pay for some merchandise. He paid for two fishing reels, sticker priced at $12.88 and $2.99. She rang up those two prices on the cash register and put the reels in a paper bag with the sales receipt. She stated that she did not know the true value of the reels.

The State called Mildred Smith, supervisor over personnel, who stated that Faye Parramore told her Lambert was in the store. She followed him and observed appellant put two reels in his buggy. She testified that she squatted down next to Lambert's buggy and while pretending to be looking at something else, observed that the prices on the two reels were $54.88 and $44.88.

State Trooper Paul Parramore testified that his wife had called him and that he went to the store, out of uniform. He went into the sporting goods department where he saw the appellant pushing a shopping cart containing two reels. He then went over to a display of the reels and noticed them to be sticker priced at $54.88 and $44.88. He watched the appellant pay $12.88 and $2.99 for the reels and detained appellant Lambert until the police arrived.

Police Officer Wendell Wooten testified that he and Officer Eudon Smith arrived and were told by Mildred Smith that appellant Lambert had changed the price tags on some merchandise. They searched and arrested the appellant and then took him to jail.

The final State witness was called in rebuttal as to the ownership of the reels. David Blackman testified that he was manager of West Brothers store, that the two reels in question belonged to West Brothers Corporation. He also stated that he saw the appellant in West Brothers store around 7:00 P.M. on the Monday prior to the Saturday when appellant was arrested. He stated that one of the employees called him and said there was a man in the sporting goods department acting suspiciously. Mr. Blackman said he went up the appellant, asked him if he could help him and noticed two Garica reels in appellant's shopping cart at that time.

The witness was then called to another department of the store and when he returned, the appellant, the shopping cart and the reels were gone. He then alerted his store personnel to be on the lookout for the appellant and gave them his description.

The appellant testified on his own behalf, and his defense was that the reels he purchased were sticker priced at $12.88 and $2.99. He testified that he was buying the reels for his little boy and that he was not aware that the prices on the reels were incorrect. He denied having been in the store on the Monday prior to the Saturday of March 9, 1974. The remainder of his testimony concerned the type of rod on which he intended to use the reel.

I

Appellant contends the State failed to prove one of the essential elements of the crime of false pretense, i.e. reliance upon the misrepresentation by the injured party. Appellant relies upon Beaty v. State, 48 Ala.App. 699, 267 So.2d 490 (1972) and Taylor v. State, 46 Ala.App. 105, 238 So.2d 902 (1970). The offense of false pretense is properly set out in those and other cases as consisting of (1) the pretense, (2) its falsity, (3) obtaining property by reason of the pretense, (4) knowledge on the part of the accused of the falsity of the pretense, and (5) intent to defraud.

Beaty, holds that a conviction cannot be sustained without proof that there was a reliance on the false representation, and it in fact induced the injured party...