Rosenblum v. State, 98 So. 216

FOSTER!, J.

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

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

The third and fourth counts charged the same offenses respectively as the first and second, except that the ownership was laid in Nаshville, 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, Chattanoogа & 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 possessiоn 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 excеpt 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 defendаnt would get them. Defendant made inquiry of the railway agent about the flour, received it, and he or liis 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 рlaced in front of his store late in the afternoon; and that Mart King hauled it from that point to Brown and Pen-der’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 determinatiоn 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 South. 546, the defendant was employed by the Mobile Light & Railway Company to haul сoal 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 cоurt held that a larceny of the coal from the railroad car was shown, and possession of the property in the Mobile Light & Power Cоmpany 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 South. 649, 11 Am. St. Rep. 18, the defendant was a hired man upоn 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 sunsеt, 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. Thе court there held that goods in the bare charge or custody of a servant are legally in the possession of the master, and the sеrvant 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 possessiоn, but, where one gains possession of the property so as to constitute only a bare'charge or custody, it does not divest the рossession of the true owner, be is still' in the ‍​‌‌‌‌‌​‌​‌‌​‌​‌‌‌‌​​‌‌‌‌​‌‌​​‌‌‌​​​​​​‌‌‌‌‌‌‌‌​​‍constructive possession, and the offense of áppropriating the property is larceny. Boswell v. State, 1 Ala. App. 182, 56 South. 21.

In the case of Lacey v. State, 13 Ala. App. 212, 68 South. 706, Ldcey 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 be delivered to the president of the board of convict inspectors, and the defendant colleсted the check, and fraudulently converted the proceeds to his own use, and at the time he assumed dominion over the check hе entertained the criminal intent to appropriate the proceeds to his own use, he was guilty of larceny. Verberg v. State, 137 Ala. 77, 34 South. 848, 97 Am. St. Rep. 17; Eggleston v. State, 129 Ala. 83, 30 South. 582, 87 Am. St. Rep. 17; Dozier v. State, 130 Ala. 57, 30 South. 396. And the quеstion of intent was for the jury. Verberg v. State, supra; Talbert v. State, 121 Ala. 34, 25 South. 690.

The title to the 20 sacks of flour was in Brown and Pender, the consignee, and the Nashville, Chattanooga & St. Louis Railway was in the actual possession as the agent of the owners. A. G. S. R. R. Co. v. Altman, 191 Ala. 429, 67 South. 589.

Ownership was properly laid in one count in Brown and Pender and in another count in the railway company. Mart King was employed to haul the flour from the railway depot and deliver it to the storehouse of Brown and Pender, and for this purpose had access to it, but had no other possession or control over it. If Mart King received from the railway company the 20 sacks of flour, the property of Brown and Pender, and, with the felonious intent at the time to appropriate ‍​‌‌‌‌‌​‌​‌‌​‌​‌‌‌‌​​‌‌‌‌​‌‌​​‌‌‌​​​​​​‌‌‌‌‌‌‌‌​​‍it to his own.use, and without the knowledge or consent of the owners, delivered said flour or caused it to be delivered to the defendant, Mart King was guilty of the offense of larceny. There was no evidence from which the jury could infer that Mаrt King had such possession of the flour as the agent of Brown and Pender as to change an offense which at common law was larcеny into that of statutory embezzlement defined in section 6828 of the Code 1907.

There was ample evidence to justify the finding of the jury that the defendаnt was guilty of receiving - stolen property knowing that it had been stolen, ahd not having the intent to restore it to the owner.

The refused chargеs are not numbered in the record, so we give them numbers for convenience. Charges 1 and 2, the general affirmative charge for the dеfendant, were properly refused. There was a conflict in the evidence and ample evidence to justify a verdict of guilt.

Chargеs 3, 4, and 5 are fully covered by the oral charge of the eoürt. The refusal of requests-covered by the charge given is not error. Brand v. Stаte, 13 Ala; App. 390, 69 South. 379.

Charges 6 and 7 have been repeatedly condemned by our Supreme Court. The word “supposition” has no placе in a charge in a criminal case. Walters v. State, ante, p. 92, 95 South. 207.

Charge 8 was faúlty, and was- properly refused. ‍​‌‌‌‌‌​‌​‌‌​‌​‌‌‌‌​​‌‌‌‌​‌‌​​‌‌‌​​​​​​‌‌‌‌‌‌‌‌​​‍This charge has been condemned in Amos v. State, 123 Ala. 50, 26 South. 524.

Charge 9 predicates an acquittal on the jury’s belief in a single proven fact, which is inconsistent with defendant’s guilt, and is faulty becáuse it pretermits a consideration of all the evidence. Williams v. State, 13 Ala. App. 133, 69 South. 376; Ex parte Davis, 184 Ala. 26, 63 South. 1010.

There is no merit in any of the exceptions reserved, and the judgment of the circuit court is affirmed.

Affirmed.

Case Details

Case Name: Rosenblum v. State

Court Name: Alabama Court of Appeals

Date Published: Aug 28, 1923

Citations: 98 So. 216; 19 Ala. App. 442; 1923 Ala. App. LEXIS 255; 8 Div. 959.

Docket Number: 8 Div. 959.

Court Abbreviation: Ala. Ct. App.