McCord v. State

• Decision Date: 09 September 1986
• Docket Number: 8 Div. 445
• Parties: David McCORD v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 520

501 So.2d 520

David McCORD v. STATE.

8 Div. 445.

Court of Criminal Appeals of Alabama.

Sept. 9, 1986.

Rehearing Denied Oct. 14, 1986.

Certiorari Denied Jan. 30, 1987

Alabama Supreme Court 86-102.

John F. Proctor, Scottsboro, for appellant.

Charles A. Graddick, Atty. Gen., and Jean Alexandra Webb, Asst. Atty. Gen., for appellee.

BOWEN, Presiding Judge.

David McCord was separately indicted for four charges of theft in the first degree. The property involved in the indictments was (1) 932 bushels of soybeans belonging to William S. Lummus, Jr., and James H. Kirkland, Jr.; (2) 2382 bushels of corn and 10,071 bushels of soybeans belonging to Walton W. Rodgers; (3) 2454 bushels of soybeans belonging to Randall and Aubrey Hereford; and, (4) 2351 bushels of soybeans belonging to C.G. Cornelison. The alleged value of all the property totaled $111,922.77. The indictments were consolidated for trial and McCord was found guilty. Sentence was a five-year concurrent sentence on each indictment as well as restitution in the amount of the value of the property. On appeal, McCord argues that the State failed to present a prima facie case, failed to prove the value of the property named in the indictment, and introduced improper evidence of motive.

The defendant owned and operated McCord and Son Grain and Feed Company in Hollytree, Alabama. The victims named in the indictment were farmers who delivered soybeans and corn during the 1982 and 1983 crop years to the defendant's grain elevator under a "price later" agreement. Most of the testimony at trial centered upon the parties' understanding of the term "price later" as it applied to grain transactions.

The farmers testified that they understood the agreement to mean that the defendant would store their soybeans until they were ready to sell them and, upon their direction, the defendant would sell the beans and pay them their money less a four cent per bushel per month storage fee. The defendant testified that a "price later" agreement meant that the grain company took title to the beans on the day they were brought to the elevator, but that the price of the beans was determined by the market price on the date that the farmer ordered the beans sold. He testified that although he charged the farmers a four cent per bushel per month fee, which was variously referred to as a "storage, service, or handling charge," he never agreed to physically store the beans until the farmers called for their money. Referring to the four cent charge, he testified that it was "something for your insurance and your handling of it and your paperwork." All parties agreed that, in effect, the "price later" arrangement allowed both the farmer and the elevator operator to gamble on the futures market, and to take their chances with the fluctuation of the price of soybeans.

When the farmers brought their crops to the defendant's elevator in the fall of 1983, the grain was weighed and graded and the farmers were given printed weight tickets in the following form:

In Out

J.D. McCord & Son No_____ ( ) Spot ( )

Grain & Feed Co. ( ) Storage ( )

( ) Contract ( )

Day Phone Night Phone

776-3619 776-3888

Hollytree, Alabama

Weigher____________ Date_____

Seller____________________

Address___________________ Driver on_____off_____

Kind and Grade of Grain_____ Base price_____ per bg.

ALL GRAIN WILL BE SOLD ON DATE OF DELIVER UN-

LESS PRIOR ARRANGEMENTS ARE MADE.

Discounts

_____lbs. gross Test Wt. _________ _________

_____lbs. tare Moisture _________ _________

_____lbs. net F.M. _________ _________

_____less. dkge. Splits _________ _________

Garlic _________ _________

Other _________ _________

Price Paid $_________ _________

NOT NEGOTIABLE

In the space labelled "Seller," the name of the respective farmer who brought in his crop was noted. In the space for "Base price," the weight tickets were marked "Later," or "P.L.," for "price later." On some of the tickets the defendant made a handwritten notation of "Storage" in the space labelled "Other."

When the farmers told the defendant to sell their beans in the spring of 1984, he did not pay them or return their beans, and shortly thereafter he declared bankruptcy.

THE EVIDENCE OF UNAUTHORIZED CONTROL

The defendant was indicted for first degree theft pursuant to § 13A-8-3(a), Code of Alabama 1975, which incorporates the following definition:

"A person commits the crime of theft of property if he:

(1) Knowingly obtains or exerts unauthorized control over the property of another, with intent to deprive the owner of his property...." Ala.Code (1975), § 13A-8-2(1).

The indictments tracked this statutory language. The defendant was not indicted for theft by deception under § 13A-8-2(2). Compare Swinney v. State, 482 So.2d 1326 (Ala.Cr.App.1985).

The defendant presents three arguments why the State failed to prove that he exercised "unauthorized control" over the beans. First, he maintains that under his version of the "price later" agreement, title to the crops passed to him at the time they were placed in his elevator and he was entitled to sell, transfer, or otherwise deal with the beans as his own. Therefore, he only exercised control over his own property. Second, he argues that, even if the farmers' version of the transaction is correct and he was not authorized to physically remove the beans from his elevator until they told him to sell, the State did not prove that he sold or removed the beans before the farmers gave the order to sell. Third, relying on § 13A-8-12, Code of Alabama 1975, he argues that the State did not prove his "intent to deprive" the farmers of their property because of his "claim of right" or honest belief that he held title to the beans at the time of the alleged sales.

These three arguments are answered in Issues I, II, and V of this opinion. Issues III, IV, and VI address related questions in determining the sufficiency of the evidence.

I

Whether title to the beans passed to the defendant at the time the beans were delivered was a question for the jury. Grain transactions similar to the one at issue here have been the subject of much civil litigation. Lapeyrouse Grain Corp. v. Tallant, 439 So.2d 105 (Ala.1983); Crigler v. Salac, 438 So.2d 1375 (Ala.1983); NYTCO Services, Inc. v. Wilson, 351 So.2d 875 (Ala.1977); Annot., 108 A.L.R. 928 (1937); Annot., 91 A.L.R. 907 (1934); Annot., 54 A.L.R. 1166 (1928). The issue, which typically arises in a civil suit for conversion, is whether the deposit of grain was a bailment or a sale. Kipp v. Goffe & Carkener, 144 Kan. 95, 58 P.2d 102 (1936). Our research has uncovered only one criminal case dealing with the precise issue.

In State v. Edwards, 345 Mo. 929, 137 S.W.2d 447 (1940), a wheat farmer delivered his grain to the mill company under an agreement that the crop would be "stored" in the elevator for 1/2 cent per bushel per month. Then, when the farmer ordered the wheat sold the mill company was to settle with him at the market price. Against the mill owner's contention that the transaction constituted a sale and precluded his conviction for embezzlement, the Missouri Supreme Court characterized the contract as a bailment because it contemplated that "a sufficient quantity of wheat had to be kept on hand to cover [the farmer's] deposit." 137 S.W.2d at 451. See generally, Annot., 54 A.L.R. 1166, supra. However, because the case was reversed on other grounds, the court's discussion is of limited precedential value.

Although different courts have construed virtually identical agreements to be either bailments as a matter of law, Burke v. Boulder Milling & Elevator Co., 77 Colo. 230, 235 P. 574 (1925), or sales as a matter of law, Morse v. LaCrosse Mill, Grain & Ice Co., 116 Kan. 697, 229 P. 366 (1924), the Alabama Supreme Court has held that the issue presents a question of fact for the jury.

In NYTCO Services, Inc. v. Wilson, supra, farmers delivered their soybeans to Covington Grain Company under a "price to be agreed upon later" plan. They received weight tickets which contained both the terms "Bought of [the farmer]" and "Stored [by the farmer]." The court affirmed the denial of the grain company's motion for directed verdict, finding that "there was at least a scintilla of evidence that there was a bailment as to Covington Grain," 351 So.2d at 879. In Lapeyrouse Grain Corp. v. Tallant, supra, farmers delivered their wheat to Montgomery Grain Corporation under an agreement designating the wheat as "unpriced," and received weight tickets stating that "upon delivery and acceptance, title passed to Lapeyrouse Grain Corp," 439 So.2d at 108. There was also evidence that the granary agreed to "store" the wheat and assessed a "storage or handling fee." The Alabama Supreme Court held:

"Although the writing in NYTCO suggests a bailment and the writing in the case before us suggests a sale, NYTCO nevertheless found the writing to be only one factor in determining the intent of the parties. In neither NYTCO nor the instant case is the writing represented to be the final written expression of an agreement. The Alabama statute regarding open price term contracts for sale also makes it clear that the intent of the parties is paramount in determining whether a contract for sale has been concluded prior to the fixing of a price:

" 'Where, however, the parties intend not to be bound unless the price be fixed or agreed and it is not fixed or agreed there is no contract.' Code 1975, § 7-2-305(4).

"Thus, if the parties in this case intended not to be bound unless the farmers were allowed to choose the date of sale, then the delivery was a bailment rather than a sale; thus, the farmers had standing to sue for conversion. The same authorities also indicate that the determination is properly for the jury. An Official Comment to the Uniform Commercial Code notes that whether the parties have intended a sale is 'in most cases a question to be determined by the trier of fact.' §...