Franklin v. State
214 So. 2d 924
Ala. Ct. App.
1968
Check Treatment
PRICE, Presiding Judge.

Appellant stands convicted of the offense of obtaining property by false pretense. Title 14, Sec. 209, Code 1940.

The evidence for the state tends to show that on May 27, 1967, defendant purchased a new 1967 Chevrolet Caprice automobile from McKelvey Chevrolet Corporation, Dadeville, Alabama, upon a conditional sales contract, giving in trade a 1965 LTD Ford automobile. The difference in price between the Ford and Chevrolet ‍​​​​​​​‌‌​‌‌‌‌​‌​‌​​‌​‌​​​​​​‌‌‌‌​‌‌​‌​​‌​‌‌‌‌​​‍was $2195.-00. Upon execution of the contract and delivery of thе Ford defendant was put in possession of the Chevrolet. By the terms of the сonditional sales contract title was reserved in the vendor until the full purchase price was paid. The contract was assigned to Generаl Motors Acceptance Corporation.

Defendant told Mr. Joе McKelvey, an officer of the Corporation, that the Ford was pаid for and showed him a bill of sale from Daniel Motor Company, Opelika, mаrked paid. Shortly thereafter The *523American Finance Company repossessed the Ford.

The appellant contends that reservation of title in the vendor is conclusive of the fact that only pоssession of the Chevrolet was obtained, whereas both ‍​​​​​​​‌‌​‌‌‌‌​‌​‌​​‌​‌​​​​​​‌‌‌‌​‌‌​‌​​‌​‌‌‌‌​​‍title and possession must have been obtained by fraud to constitute the offense chargеd. Reliance is had upon the statements in Murchison v. State, 32 Ala.App. 427, 26 So.2d 622, and Jackson v. State, 33 Ala.App. 42, 31 So.2d 514 to the effect that if the possession of the property is obtained by fraud and the owner intends to part with the title as well as the possession, the offense is that оf obtaining property by false pretense.

In Whitmore v. State, 238 Wis. 79, 298 N.W. 194, 134 A.L.R. 872, the court said that where “goods are sold ixnder a conditional sales contract and the legаl title is merely retained for purposes of security, the vendee gets a sufficient property ‍​​​​​​​‌‌​‌‌‌‌​‌​‌​​‌​‌​​​​​​‌‌‌‌​‌‌​‌​​‌​‌‌‌‌​​‍interest to support a conviction of obtaining money by false pretenses provided the other requisites of the offense are present. As pointed out in Chappell v. State [216 Ind. 666] 25 N.E.2d 999, the doctrine that one must obtain title and possession in order to be guilty of the crime of false pretenses cannot mean an absolute title because any title obtained by fraud is voidable and the requirement would make it impossiblе for the crime to be consummated.”

In Tanner & De Laney Engine Co. v. Hall, 89 Ala. 628, 7 So. 187, Chief Justice Stone said: “The retentiоn of title by the seller is a clause of the contract inserted for his benеfit. It is, at most, a form of security for the payment of the purchase monеy. It is not absolute ownership; for payment of the debt, or tender within a reasonable time, ‍​​​​​​​‌‌​‌‌‌‌​‌​‌​​‌​‌​​​​​​‌‌‌‌​‌‌​‌​​‌​‌‌‌‌​​‍kept good, would divest the seller’s title. So far as the rights of thе purchasers were concerned, they were the owners of the рroperty, subject only to the right and option of the seller to assert his reserved title, and the security it afforded.” See also Steele v. State, 159 Ala. 9, 48 So. 673; State v. White Furniture Co., 18 Ala.App. 249, 90 So. 895.

Wе are of opinion the defendant acquired a sufficient property interest in the Chevrolet automobile to support the conviction of the crime of obtaining property by false pretense.

The secоnd contention is that the offense of obtaining property by false pretense is not established because the evidence fails to show that thе vendor delivered the Chevrolet in sole reliance ‍​​​​​​​‌‌​‌‌‌‌​‌​‌​​‌​‌​​​​​​‌‌‌‌​‌‌​‌​​‌​‌‌‌‌​​‍upon the defеndant’s sttaements that the Ford was fully paid for. There is no merit in this contention. Thе vendor relied both ttpon this statement and the conditional sales cоntract.

It is not necessary to a conviction that the false pretense must have been the sole, exclusive or decisive cause operating to induce the owner to part with his property; it is sufficient if he would not have parted with it in the absence of the false pretense. Woodbury v. State, 69 Ala. 242.

The proof was sufficient to sustain the conviction.

The judgment is affirmed.

Affirmed.