Reynolds v. State

Decision Date30 June 1943
Docket Number6 Div. 941.
Citation31 Ala.App. 259,15 So.2d 600
CourtAlabama Court of Appeals

Rehearing Denied Aug. 10, 1943.

Appeal from Circuit Court, Jefferson County; John C. Morrow Judge.

Beddow Ray & Jones, of Birmingham, for appellant.

Wm. N. McQueen, Acting Atty. Gen., and Geo. C Hawkins, Asst. Atty. Gen., for the State.

RICE Judge.

Appellant was convicted of the offense of grand larceny, and his punishment fixed at imprisonment in the penitentiary for the term of four years.

The State's testimony was such that from it the jury had a right to find--as their verdict indicates they did--that appellant, together with one William, alias "Red", Hallmark, one Watson, and one Graves, or perhaps one Dan McCabe, alias Graves, with a preconceived fraudulent intent to steal same, conspired to procure the delivery to himself or one of the others of his co-conspirators by Mrs. W.D. (Viola) Purvis, of a sum of money totalling $5,250, and that he or one of said others, then converted to the use of himself or of someone of them, the entire amount so delivered.

It was the theory of the State, amply supported by its testimony, that while the money was procured from Mrs. Purvis (now Mrs. Sanders) on three separate occasions, each occasion was but a part of the general plan to procure the total amount named in the verdict of the jury.

Mrs. Purvis testified that the appellant, hitherto unknown to her, called her on the telephone, representing himself to be an agent of the Metcalf Realty Company, and wanting, he said, to sell her a house. After several more telephone conversations pertaining to such a transaction, the witness and defendant (appellant) had an engagement, which they kept in town and on which they discussed real estate.

She testified that about a week or two later she and defendant, together with William ("Red") Hallmark and one Miss Virginia Cook, went to Greenwood's Cafe for "dinner" (or supper). While there a man introduced to her as Watson, whom witness had never seen before, but who appeared to be a friend of defendant's (appellant's), joined the party; and, in the course of the conversation said he was working for Graves (but who, really, according to the State's testimony, was McCabe).

Witness Mrs. Purvis said Watson told defendant and Hallmark that Graves had beat him out of several thousand dollars in a deal, and if they would go to Graves' room and gamble Watson would see that they won, on condition that they would split with him.

Witness Mrs. Purvis testified further that the party went to Graves' room in the Thomas Jefferson Hotel, and that defendant and Hallmark won--or said they won--six thousand dollars. But that Graves refused to pay them unless and until they could evidence their own ability to have paid six thousand dollars if they had lost. Defendant (so Mrs. Purvis testified) stated to Graves that he could have given a check in that amount, but Graves replied that he would not have taken a check and that it would be necessary for defendant to show him cash. At this stage defendant, witness, and the other couple left. Defendant (appellant), according to witness (to so denominate Mrs. Purvis from here on), stated that he had twenty-nine hundred dollars which he had left in the possession of a friend, and which he could get the next morning. Defendant then asked witness if she "would put up the thirty-one hundred dollars, you know, so that they could see it and he would know that he had the money." In other words, witness' testimony was plainly to the effect that defendant asked her to turn over to defendant the sum of thirty-one hundred dollars for the sole purpose of allowing defendant to display it before Graves to show that he (defendant) could have paid off in the event he had lost.

She testified--and indeed this is not denied by defendant--that she drew out of the bank and turned over to defendant thirty-one hundred dollars in currency.

Despite the continuous promises of appellant and his co-conspirators to return the said thirty-one hundred dollars to Mrs. Purvis, such was never done. Shortly thereafter one of the co-conspirators informed Mrs. Purvis that her money was forthcoming except for a slight obstacle which could be overcome by her advancement of three hundred and fifty dollars. The evidence showed, and the jury found, that she advanced this second sum for the sole purpose of, and only to be used for, the repayment of her money. This failing, in a final effort to realize something on the numerous promises, Mrs. Purvis acceded to appellant's request for the advancement of eighteen hundred dollars to be used for the sole purpose of discharging a lien on certain property allegedly owned by appellant, which property, he promised her would be sold when the lien thereon was discharged, and the proceeds from such sale used to repay her in full for the money advanced. The State submitted these facts to the jury on the theory that they constituted a scheme to procure Mrs. Purvis' property pursuant to a single sustained criminal intent.

Further testimony tended to show that defendant had never been employed by Metcalf Realty Company; that Graves was not who he was represented to be; that the two amounts procured subsequent to the delivery of the original thirty-one hundred dollars were not used for the purposes for which they were ostensibly obtained; and that the whole scheme was, inferentially, a fraud and a hoax from beginning to end.

Possibly, even probably, we did not mention every item of the testimony which the jury could use in forming its conclusion that a conspiracy was shown. But the necessary items were there present; and the rules for their use have nowhere been found set out more clearly, according to our view, than in the opinion in the case of Jones v. State, 174 Ala. 53, 57 So. 31, to which we referred in our opinion in Kelly and Lockett v. State, 13 So.2d 691.

As for the contention of appellant's able counsel that the circumstances shown to surround the delivery of the witness Mrs. Purvis' money to appellant could not cause him to be guilty of larceny--even when the jury believed her story beyond a reasonable doubt--we think the law governing will be found in the quotations, with citations, which follow, to wit:

In American Jurisprudence, Vol. 32, pp. 915 and 916, it is said: "It is a well-settled general rule that the requirement of a felonious taking against the will of the owner is sufficiently met, and that larceny is committed, where a person intending to steal another's personal property obtains possession of it, although by or with the consent of the owner, by means of fraud or through a fraudulent trick or device, and feloniously converts it pursuant to such intent." There is cited in support of the said quotation the Alabama cases of Ex parte Economu, 211 Ala. 237, 100 So. 85, citing R.C.L.; Illinois Auto Ins. Exch. v. Southern Motor Sales Co., 207 Ala. 265, 92 So. 429, 24 A.L.R. 734; Verberg v. State, 137 Ala. 73, 34 So. 848, 97 Am.St.Rep. 17; Frazier v. State, 85 Ala. 17, 4 So. 691, 7 Am.St.Rep. 21.

In the very helpful note found in 26 A.L.R. at page 381 it is said: "Larceny by trick or fraud is distinguished from the crime of obtaining property by false pretense, in that, in the latter offense not only the possession, but the title, passes. This distinction was stated in Com. v. Barry, 1878, 124 Mass. 325, as follows: '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.'

"It is well settled that where a person by trick or fraud, obtains possession of property, intending at the time of obtaining the property to convert it to his own use, and does so convert it, the fraud is the equivalent of a felonious taking, and the offense is larceny."

Or as our own Supreme Court said: "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 larcency." Illinois Automobile Ins. Exch. v. Southern Motor Sales Co., supra [207 Ala. 265, 92 So. 430, 24 A.L.R. 734].

And the following quotation from 17 R.C.L. at page 13 is apt, viz: "If a person with a preconceived design to appropriate property to his own use, obtains possession of it by means of fraud or trickery, the taking under such circumstances amounts to larceny."

But of course it must always be kept in mind that there is a clear distinction between obtaining merely the possession, and obtaining both the possession and the title. In this latter case, the culprit could not be guilty of larceny. Murchinson v. State, 30 Ala.App. 15, 199 So. 897. But in the former...

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