Sullivan v. State, 6 Div. 158

Decision Date16 August 1966
Docket Number6 Div. 158
Citation189 So.2d 593,43 Ala.App. 302
PartiesFrank SULLIVAN v. STATE.
CourtAlabama Court of Appeals

Wm. A. Stevenson, Birmingham, for appellant.

Richmond M. Flowers, Atty. Gen., and Bernard F. Sykes, Asst. Atty. Gen., for the State.

PRICE, Presiding Judge.

Appellant was convicted of grand larceny. His punishment was fixed at five years' imprisonment in the penitentiary.

The evidence tends to show that on January 9, 1964, the defendant approached Emma Shapard at an Ensley, Alabama, department store and started a conversation by saying he wanted to help poor people. He said his companion had found a $10,000 bond and if she would put up $1,000 good faith money he would take the bond to his employer who would return her money and would also cash the $10,000 bond and divide its proceeds among the defendant, Emma Shapard and defendant's companion. After this conversation defendant drove Emma Shapard to the First National Bank of Ensley where she withdrew $1,000.00. The defendant then drove to a parking lot where she gave him the $1,000, plus $20.00 that was left from a $40.00 withdrawal made earlier in the day. The defendant took the money and gave it to his companion in the back of the car. The defendant then told the prosecuting witness to go to a certain hardware store in Ensley where he said he worked, that his employer would tell her when they were going to cash the bond and divide the money. She started walking to the hardware store, but halfway there she became ill when she realized what she had done. She went on to the hardware store and a salesman called the police.

Police officers were called and Emma Shapard gave them a description of the men involved. The next day she was shown photographs of known 'confidence' men and identified defendant from these pictures as being one of the men who took her money. An arrest order was filed and defendant was arrested on January 15th. On January 17, 1964, a lineup of suspects was held at the city jail, where Emma Shapard again identified the defendant as one of the men involved in the 'flim flam.'

The state introduced in evidence a bank deposit book belonging to Emma Shapard which showed withdrawls of $1,040 on January 9, 1964.

No evidence was introduced by defendant.

In Reynolds v. State, 31 Ala.App. 259, 15 So.2d 600, the following appears:

"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, of 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., supra (207 Ala. 265, 92 So. 430, 24 A.L.R. 734).

'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. Murchison v. State, 30 Ala.App. 15, 199 So. 897. But in the former he Could--and would. Savage v. State, 15 Ala.App. 168, 72 So. 694.

'However, we think the following quotation from American Jurisprudence, Volume 32, page 919, also has direct application, to wit: '* * * It is recognized that there are exceptions to the doctrine that larceny by trick or fraud is...

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5 cases
  • McConico v. State
    • United States
    • Alabama Court of Criminal Appeals
    • August 14, 1984
    ...contends that the trial court erred in denying his motion to inspect the minutes of the grand jury. This court in Sullivan v. State, 43 Ala.App. 302, 189 So.2d 593 (1966), held that the trial court, in its discretion, may allow counsel to look at grand jury notes or minutes. Nowhere is it s......
  • Allen v. State
    • United States
    • Alabama Court of Criminal Appeals
    • November 20, 1979
    ...of grand jury," the appellant should be given access to that witness's testimony before the grand jury. This court in Sullivan v. State, 43 Ala.App. 302, 189 So.2d 593, held that the trial court in its discretion may allow defense counsel to look at grand jury notes. In Sullivan, defense co......
  • Jones v. State
    • United States
    • Alabama Court of Criminal Appeals
    • August 19, 1975
    ...31 Ala.App. 259, 15 So.2d 600, cert. den. 245 Ala. 47, 15 So.2d 605; Hufstetler v. State, 37 Ala.App. 71, 63 So.2d 730; Sullivan v. State, 43 Ala.App. 302, 189 So.2d 593. It is therefore clear, under the evidence in this cause, that the trial court correctly submitted this matter to the jur......
  • Hill v. State
    • United States
    • Alabama Court of Criminal Appeals
    • June 13, 1972
    ...the trial court was not in error in overruling appellant's motion. Reynolds v. State, 31 Ala.App. 259, 15 So.2d 600; Sullivan v. State, 43 Ala.App. 302, 189 So.2d 593; Turner v. State, 266 Ala. 250, 96 So.2d Appellant cites as error the refusal of the trial court to give the requested affir......
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