Murchison v. State, 5 Div. 224.

• Court: Alabama Court of Appeals
• Citation: 32 Ala.App. 427,26 So.2d 622
• Docket Number: 5 Div. 224.
• Parties: MURCHISON v. STATE.
• Decision Date: 11 June 1946

26 So.2d 622

32 Ala.App. 427

MURCHISON
v.
STATE.

5 Div. 224.

Alabama Court of Appeals

June 11, 1946

[32 Ala.App. 428] [26 So.2d 623]

Chas. S. Bentley, of Goodwater, and Albert J. Pickett, of Montgomery, for appellant.

Wm. N. McQueen, Atty. Gen., and MacDonald Gallion, Asst. Atty. Gen., for the State.

CARR, Judge.

Appellant in the court below was tried and convicted on a count in the indictment charging grand larceny. The count was in form prescribed by statute. Code 1940, Title 15, Sec. 259, Form 66. It was not, therefore, subject to demurrer. Flott v. State, 24 Ala.App. 584, 139 So. 298.

The question of prime importance that appears of record on this appeal is whether or not the facts are sufficient upon which to base a conviction of larceny as charged. The general affirmative charge was refused the defendant, and the question is thus posed for our review.

'At common law, if one secures the possession of a chattel, not the title thereto or a special property therein, by or with the consent of the owner, through a fraudulent trick or device, then intending [32 Ala.App. 429] to steal the chattel, it is larceny.' Illinois Automobile Ins. Exch. v. Southern Motor Sales Co., 207 Ala. 265, 92 So. 429, 430, 24 A.L.R. 734. See also, 32 Am.Jur. pp. 915 and 916; 17 R.C.L., p. 13; Ex parte Economu, 211 Ala. 237, 100 So. 85; Verberg v. State, 137 Ala. 73, 34 So. 848, 97 Am.St.Rep. 17.

Confusion and difficulty sometimes arise in an effort to distinguish the three kindred crimes, larceny, false pretenses, and embezzlement. The Massachusetts [26 So.2d 624] Supreme Court in Commonwealth v. Barry, 124 Mass. 325, makes the distinction very clearly. Therein the court said:

'If a person honestly receives the possession of the goods, chattels or money of another upon any trust, express or implied, and, after receiving them, fraudulently converts them to his own use, he may be guilty of the crime of embezzlement, but cannot be of that of larceny, except as embezzlement is by statute made larceny. If the possession of such property is obtained by fraud, and the owner of it intends to part with his title as well as his possession, the offence is that of obtaining property by false pretences, provided the means by which they are acquired are such as, in law, are false pretences. If the possession is fraudulently obtained, with intent on the part of the person obtaining it, at the time he receives it, to convert the same to his own use, and the person parting with it intends to part with his possession merely, and not with his title to the property, the offence is larceny.'

The text writer in 35 C.J.S., False Pretenses, Sec. 3, p. 638, states the difference between larceny and false pretenses to be:

'The crime of obtaining money or goods by false pretenses is closely allied, or analogous, to that of larceny, and it has been said that the statutes denouncing it and like offenses were designed for the fuller protection of personal property and in aid of the laws against larceny and theft However, the two offenses are generally distinguishable, although the distinction is very fine where the obtaining of the money or property is accomplished by fraud, trick, or device. The distinction between the crimes of obtaining by false pretenses and larceny lies in the intention with which the owner parts with the property; if the owner, in parting with the property, intends to invest accused with the title as well as the possession, the latter has committed the crime of obtaining the property by false pretenses, but if the intention of the owner is to invest accused with the mere possession of the property, and the latter, with the requisite intent, receives it and converts it to his own use, the crime is larceny.'

This court in Reynolds v. State, 31 Ala.App. 259, 15 So.2d 600, approved the rule of demarcation outlined above.

Under the guidance of the above authorities, we come to consider the instant case on the basis of its evidence and the reasonable inferences to be drawn therefrom. In so doing we take the testimony in its most favorable aspect for the State. This we must do in determining the propriety vel non of the refusal of the general affirmative charge to the defendant. The Assistant Attorney General has correctly and accurately set out the tendencies of the State's evidence. We quote it:

'On December 13, 1943, the defendant was in Troy, Alabama, where he stopped in a lunch stand, and over a bottle of beer struck up a conversation with one Selman Smart, a local resident. Selman Smart, it appears, had various business dealings from time to time which were financed by Alva Register, a local radio shop operator. During the course of the conversation defendant asked Smart if he would be interested in purchasing thirty-four hogs at $10.00 a head. Smart, seeing an opportunity to realize some profit in such a transaction, took the proposition to Register, who agreed to finance such a deal....