Fox v. State

Dec 2, 1920

7 Div. 107.

Reporters:: , ,
Before:: Gardner

GARDNER, J.

By this proceeding petitioner seeks to review the decision оf the Court of Appeals, affirming the judgment of conviction against him fоr grand larceny.

The questions argued most strenuously by counsel for pеtitioner relate to the exception reserved to ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍cеrtain portions of the oral charge of the court, which will appear in the statement of the case. ,

[1] It was contended оn the part of the state that while the possession first obtained by the defendant for a limited time was rightful, yet that after the expiration of that time the defendant returned the car to the owner, and therеafter, without his [owner’s] knowledge or consent, wrongfully took the cаr from1 the owner’s premises, and with felonious intent converted the sаme to his own use. Counsel lays particular .stress upon that portiоn of the court’s oral charge wherein the jury were instructed that if defendant did so wrongfully acquire possession of the property, and while thus in the wrongful possession the defendant conceived the рurpose to subsequently convert it feloniously to his own use, and did so, this wоuld be larceny. We are cited to 17 R. C. L. § 28.

Whatever may be the rule еlsewhere, however, the court in this instance correctly declared ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍the law, as determined in this jurisdiction. Speaking of this subject in Dozier v. State, 130 Ala. 57, 30 South. 396, the court said:

“If the criminating tendencies of the testimony in this case arе to be believed, the taking was tortious, a trespass. And if after acquiring the property, he conceived and exe *76 eutcd the рurpose subsequently to convert it feloniously to Ms own ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍use or to the use of another, this would constitute larceny.”

To the same effect, see Weaver v. State, 77 Ala. 26, and King v. State, 15 Ala. App. 67, 72 South. 552.

We are therefоre of the opinion that when the portions of the oral charge of the court, to which exceptions are reserved, аre considered in connection with entire charge there was no reversible error, and that the judgment of the Court of Appeals in so affirming is correct.

[2] However, in the opinion of the Court of ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍Appeals is the following expression:

“If the defendant came into possession of the car with the consent of Williams, for the solе purpose of trying it out for a specified time, and the defendаnt changed the character of the possession, having at the time the felonious intent, it would be larceny.”

Under the circumstances outlined in this quotation we are of the opinion that it discloses thе defendant obtained possession of the car ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍under a special contract, such as would constitute him a bailee thereof, and conies within the doctrine announced in Crocheron v. State, 86 Ala. 64, 5 South. 649, 11 Am. St. Rep. 18, Eggleston v. State, 129 Ala. 80, 30 South. 582, 87 Am. St. Rep. 17, Parker v. State, 111 Ala. 72, 20 South. 641, and Pierce v. State, 124 Ala. 66, 27 South. 269, to the effect there could be no conviction of larceny-under such circumstances without proof of the feloniоus intent on the part of defendant at the time he received thе ear. This statement, however, in the opinion of the Court of Appeals was not necessary to a determination of the cause, as such had not been included in the oral charge of the court, and does not appear in any exception reserved thereto.

It results that while the foregoing expression does nоt meet with our approval, yet the decision of the Court of Aрpeals is correct, and the petition for certiorari will be denied.

Petition denied.

All the Justices concur.