Latham v. State

• Decision Date: 18 February 1975
• Docket Number: 3 Div. 304
• Citation: 56 Ala.App. 234,320 So.2d 747
• Parties: Ruby Lee LATHAM v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 747

320 So.2d 747

56 Ala.App. 234

Ruby Lee LATHAM v. STATE.

3 Div. 304.

Court of Criminal Appeals of Alabama.

Feb. 18, 1975.

Rehearings Denied April 1, 1975.

James M. Fullan, Jr., Birmingham, J. Paul Lowery, Montgomery, William D. Latham, Clanton, for appellant.

William J. Baxley, Atty. Gen. and William G. McKnight, Asst. Atty. Gen., for the State.

CLARK, Supernumerary Circuit Judge.

A jury returned a general verdict finding appellant guilty as charged in a two-count indictment, the first count charging her with obtaining by false pretense 'from the State of Alabama a sum of, to-wit: $489.90,' the second count charging her with larceny of the same sum, 'the personal property of the State of Alabama.' She was sentenced to ten years imprisonment in the penitentiary, the maximum punishment for each of the two crimes. Title 14, Sections 209 and 331, Code of Alabama. The counts of the indictment followed substantially the applicable forms prescribed by Title 15, Section 259, Code of Alabama (Form 60 as to obtaining money or other personal property by false pretense and Form 66 as to grand larceny). Each count of the indictment also charged one Robert O. Wilson with the same offense, but each defendant demanded a severance, which was ordered, and appellant after pleading not guilty was 'tried separately, alone and apart from' the other defendant.

The paramount issue on the trial was the truth or falsity of some details expressed in the first count of the indictment to the effect that defendant did falsely pretend to the State Comptroller, or his duly authorized agent, with intent to defraud, that one J. F. Ragland had ordered or requisitioned for the State of Alabama, Highway Department, designated parts, machinery or supplies of the aggregate value of '$499.90,' that said property had been shipped or delivered to said Highway Department by Machinery and Supplies, Inc., a corporation, and that payment was due and owing thereon. The property involved was further described as '3 Tailwheel Assemblies, Stock No. 6320' and '5 Front Half 35R Universal Assemblies, Stock No. 377.'

After being identified by a witness from the Highway Department Bureau of Equipment, a field requisition for supplies dated December 28, 1972, purportedly signed by 'J. F. Ragland,' otherwise identified as James F. Ragland, also employed by said Bureau, was admitted in evidence. James F. Ragland testified that he did not sign the requisition, that the signature thereon was not his, and that he did not authorize anyone to sign it for him. The requisition was for 3 Tailwheel Assemblies and 5 Front Half Universal Assemblies as described in the first count of the indictment and called for their delivery at a total price of '$499.90,' to J. F. Ragland, and was addressed to R. O. Wilson, otherwise identified as Robert O. Wilson, the other defendant charged in the indictment, at the time acting equipment maintenance director of the Highway Department Equipment Bureau. Mr. Ragland testified that he never received the particular items; that he had pulled every piece of paper in his office and had been unable to find any record of the items involved. He also testified that about ninety percent of the parts received in his warehouse are not given inventory numbers because their value is not great enough. He further testified that he knew Mr. Wilson, and that Mr. Wilson gave the instructions on how to handle the parts that came to the warehouse. Mr. Ragland had six or seven men under him, and he did not see every part which came into the warehouse. Mr. Ragland's testimony proved to be inapplicable to his duties at the time of the particular transaction involved, for on cross-examination he testified that he had been replaced for several months prior to December 28, 1972, in the work as to which he testified.

There was also introduced in evidence by the State an order dated December 29, 1972, (Local Delivery Order No. 97488) on a form of the Equipment Bureau, directed to Machinery & Supplies, Inc., for the identical items (and prices) listed in the material requisition. It called for delivery of the items to 'Mr. R. O. Wilson,' was purportedly certified by R. O. Wilson as ordered on submitted forms and was also purportedly certified by him as 'needed for official Highway Department work as authorized by me.' This Local Delivery Order contains a receipt for the listed items which was purportedly signed by 'H. G. Sexton.' The order contains the signature of R. O. Wilson under the printed legend 'Approved for Payment.'

Mr. Homer Sexton testified that he is employed by the State Highway Department Equipment Bureau. He identified himself as the person whose name was signed to the receipt portion of Local Delivery Order No. 97488, but stated that it was not his signature and he did not authorize anyone to sign for him. His records did not show that the equipment had been received, but he was unable to state whether the equipment had been received. Next to his name are handwritten marks that he identified as the initials 'M.M.,' which he related to the typist for the department by the name of Martha Morgan.

Martha Morgan testified that at the time of the issuance of Local Delivery Order No. 97488 Mr. Robert Wilson was her supervisor. It was her practice to type 'L.D.O.'s' (local delivery orders) from handwritten field requisitions. She signed Mr. Sexton's name to the particular L.D.O. She also signed Mr. Wilson's name to two certifications as partly quoted hereinabove. The field requisition form was filled in in handwriting, which the witness testified was that of Mr. Wilson and that the field requisition was given her by Mr. Wilson. Mr. Sexton had never authorized her to sign his name on any L.D.O. The witness further testified that she was introduced to appellant-defendant in Mr. Wilson's office; that she visited there frequently and that often, after such visits, the three of them would go for coffee. According to her testimony, after such visits by appellant-defendant, the witness usually had some invoices from which she typed L.D.O.'s. She said that appellant did not ask her to type the L.D.O.'s, that she was asked to do so by Mr. Wilson, but that appellant-defendant did sometimes wait for her to type them. In referring to her affixing the names of Mr. Wilson and Mr. Sexton to the documents, she said that one James White had told her that that was the way to do it.

Mr. William Norris, an employee of the State Comptroller's office, whose immediate supervisor is the State Comptroller, testified that he is the custodian of the records of that department. He identified State's Exhibit 2, which contained: 1. a State Highway Department Voucher No. 26013; 2. a copy of L.D.O. No. 97488; 3. an invoice from Material and Supplies, Inc., No. 1403, which items were admitted in evidence. There were seven transactions on the voucher, which were paid for by State Warrant No. 90463, on January 18, 1973, in the amount of $2,546.93. The L.D.O. and the M&S invoice called for payment of $499.90 with a two percent discount, making the sum due $489.90, which constituted one of the seven items on the voucher which was approved for payment on January 16, 1973. The witness stated that he audited this particular transaction from the standpoint of correctness of figures and signatures supporting the material receipts, that he approved it for payment and that he based his approval on the fact that the parts on the invoice and the parts on the L.D.O. were the same and the L.D.O. had a signature at every available place showing the parts were received. He said that State's Exhibit 2 was the cause of the issuance of the warrant. He said that at the time of his approval he had not noted anything irregular about the transaction, that there was no signature of defendant on any of the papers, and that he did not know whether the materials were delivered.

The warrant for the sum of $2,546.93 payable to Machinery & Supplies, Inc., was introduced in evidence by the State upon its identification by Verna H. Gray, an employee of the State Treasurer's Office, Supervisor of the Warrant Division. It was endorsed 'For Deposit Only to the Account of Machinery and Supplies, Inc., Ruby Lee Latham, secretary and Treasurer.'

Edwin Dow, an official of the Union Bank and Trust Company in Montgomery testified as to an account at the bank in the name of Machinery and Supplies Company. He identified a deposit slip of the Union Bank & Trust Company showing a deposit of $2,546.93, which he correlated with State Warrant No. 94063. The deposit slip was dated January 19, 1973. The witness also identified copy of a check drawn on the account of Materials & Supplies, which check was signed by appellant-defendant and dated January 19, 1973, and testified that for said check a bank money order was issued in the same amount. These and other items were introduced in evidence.

A vice president of the Citizens Bank & Trust Company of Selma, Alabama, testified as to a checking account statement for the month of January 1973 of defendant Ruby Latham. He identified an exhibit introduced in evidence as a copy of a deposit ticket for her on her account in the amount of $2,100 and a copy of the bank money order issued by the Union Bank & Trust Company to Ruby Latham in the same amount, as testified by Mr. Dow. He further testified as to several withdrawals by defendant Ruby Latham as represented by cancelled checks in favor of various payees, some of which were payable to Machinery and Supplies.

Bryce Richbourg, an employee of the State of Alabama Examiners of Public Accounts Office, testified that in September-November 1973 he examined and audited purported purchases by the Highway Department from M&S, including those covered by State Warrant No. 90463 and Voucher No. 26013, including particularly equipment covered by L.D.O. No. 97488. He testified at length and upon profuse questioning by both couns...