Murchison v. State

• Decision Date: 11 June 1946
• Docket Number: 5 Div. 224.
• Parties: MURCHISON v. STATE.
• Court: Alabama Court of Appeals

26 So.2d 622

32 Ala.App. 427

MURCHISON v. STATE.

5 Div. 224.

Alabama Court of Appeals

June 11, 1946

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 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 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. The defendant stated that the hogs were near Rockford, Alabama, and were owned by an old lady whose husband was in the Veterans Hospital in Montgomery. Thereupon, defendant, Register, Smart, and one Pugh Davis, an employee of Mr. Register, started driving in Register's automobile toward Rockford. Several stops were made along the way, at which times defendant and Smart drank beer. Register and Davis did not participate in the drinking. Arriving in the vicinity of Shady Grove Church in Coosa County after dark, defendant had Register stop the car, whereupon he requested that he be allowed to go down alone beyond the hill to see the old lady about the hogs. Defendant and Register filled out a check which defendant signed. After thirty or forty minutes, defendant came back and stated that the old lady (a Mrs. Penton) would not accept the check. The four in the party then proceeded to Wetumpka where defendant said he knew a banker and could arrange for the cash.

At Wetumpka he left the car and coming back later said that he was unable to find the banker. Thereupon, the four men proceeded down the highway, and when again in the vicinity of the Shady Grove Church defendant insisted that he could still get the hogs if he had the $340.00 cash. Register finally let him have this amount of money in cash, whereupon defendant again went off down the hill. The agreement was for him to load the hogs in Mrs. Penton's Ford Truck and meet Register and the others in about thirty-five to forty-five minutes, whereupon he would follow them to Troy. The defendant, after leaving on this occasion, never returned.'

To the above quoted recitation we add: Mrs. Penton stated in her testimony that she did not have any hogs for sale and that the defendant had not negotiated with her for the sale of any. In fact she said she did not live under the hill from Shady Grove Church, where it was claimed the party kept vigilance for appellant's return with the truckload of hogs, but instead she resided a distance of about five or six miles from the church. She testified also that she did not own a truck, nor was there a loading chute on her premises.

It will not be amiss to here observe that the trial court overruled objections by the appellant to questions propounded to Mrs Penton eliciting the information just indicated above. We hold correctly so. It was material on the inquiry of whether or not the...