Andersen v. StateAndersen v. State
On April 26, 1981, the appellant entered into a contract with Mrs. Cecil E. Adams. The terms of the contract stated that the appellant promised to perform certain yard work for the Adamses in return for their promise to pay $330 for the work. Mrs. Adams signed the contract without reading the fine print and gave the appellant a $200 deposit check.
Mrs. Adams testified during trial that she told appellant the yard work had to be completed by the end of May, when she and her husband, George D. Adams, were leaving on vacation. Appellant assured Mrs. Adams he would begin the job no later than Saturday of the fоllowing week. The contract provided, however, that appellant
When appellant failed to begin work the following week, the Adamses attempted to contact appellant to inquire when he would begin the job. The Adamses made numerous telephone сalls to appellant but each call was received by an answering service which took their messages. Appellant never returned their calls. Mrs. Adams testified she was aware appellant was working at a friend‘s house in the neighborhood during this period of time.
On May 28, 1981, the Adamses sent a letter by certified mail to the appellant cаncelling the contract and demanding return of their $200 deposit. The Adamses left on vacation for three weeks. They again attempted to reach appellant, unsuccessfully. They sent several letters to appellant threatening court action if their deposit was not returned. The appellant never replied to their letters. Mr. Adams went on several occasions to appellant‘s place of business, but was unable to see the appellant. On one particular occasion, Mr. Adams spoke with Velma Andersen, the appellant‘s wife. She informed Mr. Adams that the appellant had been seriously burned in a gasoline explosion in early June and hе had not been able to work all summer. Mrs. Andersen told Mr. Adams that the appellant was not able to see him but that she would send the deposit check in the mail the next week. Thе Adamses never received the deposit check.
Tony Evetts testified he rented warehouse space to the appellant and that he found two letters the Adаmses had sent to appellant in a filing cabinet belonging to appellant.
At this point in the trial, the appellant made a motion for a directed verdict on the grounds that the State had not proved a prima facie case of theft. The appellant also contended this case should be a civil action for breach of contract rather than a criminal prosecution for theft. The trial court denied this and overruled the appellant‘s motion.
Velma Andersen testified she was the sеcretary for her husband‘s business. She stated she received her husband‘s phone messages and mail but never opened his mail. Mrs. Andersen remembered Mr. Adams had been to their house demanding the return of the deposit and threatening court action if it were not so returned.
The appellant stated at trial that he explained the terms of the cоntract in full detail to Mrs. Adams on the day it was signed. He testified some of his other jobs were extended which delayed the commencement of work on the Adamses’ yard. The appellant stated he received a telephone message from the Adamses cancelling the contract because they were leaving on vacation and requesting return of their deposit.
The appellant testified he was willing to return $130 of the Adamses’ deposit, but would not refund the entire $200 because the contract contаined a 35% forfeiture clause. He stated when he learned that his wife had not sent the Adamses a check, he immediately sent a check to them which was returned refused.
I
Appellant contends in his brief
This court has held that constitutional rights must be seasonably raised in the lower court. Beasley v. State, 408 So.2d 173 (Ala.Cr.App. 1981), writ denied, 408 So.2d 180 (Ala. 1982). Since the appellant did not properly preserve this question for аppellate review because he failed to raise the unconstitutionality of the statute at the trial level, we need not therefore consider this issue.
II
The aрpellant contends that the trial court committed reversible error by failing
III
The appellant‘s principal contention is that the trial court committed reversible error in overruling his motion for a directed verdict on three grounds:
(1) the State did not show that the appellant had the necessary criminal intent to deprive the Adamses of their property;
(2) there was no deception on the part of the appellant, and,
(3) there was a contract entered into by responsible adults and which the appellant was not given an opportunity to pеrform, and moreover, this case should be a civil not a criminal matter. The language of
“A person commits the crime of theft of property if he:
(1) Knowingly obtains or exerts unauthorizеd control over the property of another, with intent to deprive the owner of his property; or
(2) Knowingly obtains by deception control over the property of another with intent to deprive the owner of his property.”
A key word in
In this case, thеre was more than a mere failure to perform. Not only did the appellant fail to perform his obligations under the contract, but he also never returned the Adamsеs’ telephone calls, refused to see Mr. Adams, and would not return the full amount of their deposit. The State‘s evidence was ample to allow the jury to find deceptiоn on the part of the appellant.
The commentary to
This court has consistently held that in a prosecution for theft, i.e., the issue of whether the appellant had the intent to deprive the victim of his property is a question for the jury. Barbee v. State, 395 So.2d 1128 (Ala.Cr.App. 1981); Craig v. State, 410 So.2d 449 (Ala.Cr.App. 1981). Whether or not the appellant intended to
Therefore, the judgment of the lower court is due to be and is hereby affirmed.
AFFIRMED.
HARRIS, P.J., and BOWEN and BARRON, JJ., concur.
DeCARLO, J., dis