Murchinson v. State

• Decision Date: 17 December 1940
• Docket Number: 5 Div. 111.
• Parties: MURCHINSON v. STATE.
• Court: Alabama Court of Appeals

199 So. 897

30 Ala.App. 15

MURCHINSON v. STATE.

5 Div. 111.

Court of Appeals of Alabama

December 17, 1940

Rehearing Denied Jan. 21, 1941.

Appeal from Circuit Court, Coosa County; W. W. Wallace, Judge.

Lorenza Murchinson was convicted of grand larceny, and he appeals.

Reversed and remanded.

Felix L. Smith, of Rockford, and Hill, Hill, Whiting & Rives, of Montgomery, for appellant.

Thos. S. Lawson, Atty. Gen., and Wm. N. McQueen Asst. Atty. Gen., for the State.

RICE Judge.

Appellant was convicted of the offense of grand larceny (Code 1923 Sec. 4905), and his punishment fixed at imprisonment in the penitentiary for an indeterminate period of not less than two years, nor more than three years,--the offense with and for which he was charged and convicted having occurred prior to the effective date of Act of the Legislature approved August 24, 1939, Gen. Acts Ala. Regular Session 1939, p. 438.

The facts in the case, as stated by the Assistant Attorney General here representing the State, are as follows, to-wit:

"The evidence introduced on behalf of the State tends to prove that on Saturday night, July 22, 1939, one J. P. Whitson met appellant in Coosa County and appellant stated to Whitson that he had sixty-three cases of whiskey that he wished to sell at $6.00 per case. The evidence further tends to prove that Whitson did not want all of the whiskey, and Whitson and appellant went to Talladega to contact friends of Whitson to see if they wanted any of the whiskey. The evidence further tends to prove that Whitson contacted three of his friends, and the four of them in company with the appellant returned to Coosa County to get the whiskey. After driving around for a while, appellant told the driver of the automobile to turn up a side road and stop. Whitson and appellant got out of the automobile and walked up the road about a quarter of a mile. Then appellant told Whitson to wait and he would proceed to the house and see if he could get the whiskey. Appellant returned in about a half an hour and stated to Whitson that he could not get the whiskey that night. After some talking back and forth, appellant stated that he would try to get some of the whiskey that night--thereupon, Whitson gave appellant a sum of money between $148 and $152. Appellant walked away toward the house and did not return with either the whiskey or the money.

"There was no evidence introduced on behalf of the appellant."

The indictment was in two counts, i. e. as it was submitted to the jury, and we quote the first of same (the other being not essentially different--merely placing the amount of money at $152.50 rather than at $148) to-wit: "The Grand Jury of said County charge that before the finding of this indictment Lorenza Murchison, whose true name is to the Grand Jury unknown otherwise than as stated, feloniously took and carried away One Hundred Forty Eight & No/100 Dollars, lawful money of the United States of America, of the value of One Hundred Forty Eight & No/100 Dollars, the personal property of J. P. Whitson, against the peace and dignity of the State of Alabama."

The decisive question is the propriety vel non of the trial court's action in refusing to give to the jury at appellant's due request the general affirmative charge to find him not guilty. Or, as the Attorney General states it: "Under the evidence introduced by the State, can this appellant be guilty of grand larceny?" We will answer the question as put by the Attorney General.

It should first be observed that Coosa County, where the transaction took place, is a "Dry County"--wherein the laws against the sale and possession of whiskey, in so far as concerns all those situated as were appellant and State's witness J. P. Whitson, are in full force and effect as they stood prior to the enactment of the Alabama Beverage Control Act in February 1937, Gen.Acts Ala. Extra Session 1936-1937, p. 40. Code 1928, Sec. 4621; Williams v. State, 28 Ala.App. 73, 179 So. 915, certiorari denied 235 Ala. 520, 179 So. 920.

And that State's witness J. P. Whitson in undertaking to buy the whiskey was endeavoring to violate the law. Jinright v. State, 220 Ala. 268, 125 So. 606.

Never in the history of the common law have agreements in violation of law been regarded as valid. Individuals have at no time been allowed to stipulate for iniquity. 12 Amer.Jur. Contracts, § 149; Black & Manning v. Oliver, 1 Ala. 449, 35 Am.Dec. 28.

Likewise is it true that "transactions in violation of law cannot be made the foundation of a valid contract; * * * (and that) an agreement to do an illegal act is illegal." 12 Amer.Jur. Contracts, §§ 149, 150.

As in the Black & Manning v. Oliver case, supra, Oliver, after delivering a slave to Sweet (in whose place Black & Manning stood at the trial), was powerless to recover the slave or force Sweet to perform an illegal agreement made as a consideration for the slave's delivery, so, here, State's witness Whitson, who, admittedly "gave appellant a sum of money between $148.00 and $152.00," in return for appellant's illegal agreement that "he would try to get some of the whiskey that night"--whiskey which, by the way, belonged to appellant--is to be left powerless.

Now if State's witness Whitson is powerless to recover the money he "g...