Rosenblum v. State

• Decision Date: 28 August 1923
• Docket Number: 8 Div. 959.
• Citation: Rosenblum v. State, 19 Ala. App. 442, 98 So. 216 (Ala. App. 1923)
• Parties: ROSENBLUM v. STATE.
• Court: Alabama Court of Appeals

98 So. 216

19 Ala.App. 442

ROSENBLUM v. STATE.

8 Div. 959.

Court of Appeals of Alabama

August 28, 1923

Rehearing Denied Oct. 30, 1923.

Appeal from Circuit Court, Madison County; Osceola Kyle, Judge.

Jake Rosenblum was convicted of receiving stolen property, etc and appeals. Affirmed.

See also, Ex parte Rosenblum (Ala. Sup.) 98 So. 219.

Douglass Taylor, of Huntsville, for appellant.

Harwell G. Davis, Atty. Gen., for the State.

FOSTER J.

The indictment contained four counts. The first count charged that the defendant did buy, receive, conceal, etc., 20 sacks of flour, of the value of $30, the personal property of Brown & Pender, a partnership, etc., knowing that it had been stolen and not having the intent to restore it to the owner.

The second count charged that defendant received the same property, knowing it had been embezzled.

The third and fourth counts charged the same offenses respectively as the first and second, except that the ownership was laid in Nashville, Chattanooga & St. Louis Railway, a corporation.

Brown and Pender were merchants, doing business at West Huntsville about one and a half miles from the Nashville, Chattanooga &amp St. Louis Railway depot. The defendant conducted a store about 200 to 300 yards from the depot. In May, 1921, there was a shipment of 400 sacks of flour over the Nashville, Chattanooga & St. Louis Railway to Brown and Pender at Huntsville, and this flour was at the depot in the actual possession of the Nashville, Chattanooga & St. Louis Railway for Brown and Pender. The evidence for the state tended to show that Mart King was employed by Brown and Pender to haul the flour to their store; that he went to the depot for the flour, received same, and loaded all except 20 sacks on his wagon, and delivered it to Brown and Pender. Mart King set aside 20 sacks of the flour, and said to the railway agent that the defendant would get them. Defendant made inquiry of the railway agent about the flour, received it, and he or his driver hauled it away from the depot to defendant's store, and it was never delivered to Brown and Pender. The defendant contended that he never received the flour; that it was placed in front of his store late in the afternoon; and that Mart King hauled it from that point to Brown and Pender's store and delivered it to them.

The court gave the affirmative charge for the defendant on the second and fourth counts of the indictment.

The first question for determination is, Was Mart King guilty of a larceny of 20 sacks of flour either from Brown and Pender or from the Nashville, Chattanooga & St. Louis Railway?

In Washington v. State, 106 Ala. 58, 17 So. 546, the defendant was employed by the Mobile Light & Railway Company to haul coal from a car to the power house of the plant. While hauling the coal he sold some of it through agents without handling it himself. The court held that a larceny of the coal from the railroad car was shown, and possession of the property in the Mobile Light & Power Company sufficiently established to justify the court in refusing the general charge for defendant. The court held that one employed to haul coal from cars and deliver it at a certain designated place, and who has no other possession of the coal, is guilty of larceny if he sells it, with felonious intent, on his own account, without the knowledge or consent of the owner.

In Crocheron v. State, 86 Ala. 64, 5 So. 649, 11 Am. St. Rep. 18, the defendant was a hired man upon a farm. His duties were to plow a mule belonging to the owner of the farm, and to attend to the mule. One day he plowed the mule until nearly sunset, when he took it from the plow and went to water it. The owner did not see the mule for several days, when he found it in possession of one Childs. The court there held that goods in the bare charge or custody of a servant are legally in the possession of the master, and the servant may be guilty of trespass and larceny by the fraudulent conversion of such goods to his own use.

Larceny and embezzlement belong to the same family of crimes, the distinguishing feature being that to constitute larceny there must have been a trespass or wrong to the possession, but, where one gains possession of the property so as to constitute only a bare charge or custody, it does not divest the possession of the true owner, he is still in the constructive possession, and the offense of appropriating the property is larceny. Boswell v. State, 1 Ala. App. 182, 56 So. 21.

In the case of Lacey v. State, 13 Ala. App. 212, 68 So 706, Lacey was a clerk in the office of the board of convict inspectors, and our court held that, if a check was left on defendant's desk to...