Steele v. State

48 So. 673 | Ala. | 1909

SAYRE, J.

The defendant was indicted and convicted for removing certain articles of house hold furniture in Adolation of section 7342, Code 1907. Defendant had purchased the articles in question from the firm of Frank & Hagedorne, and the relations of the parties in respect to the .property were evidenced by a paper writing, signed by the defendant, which, beginning with a recital that the vendors had “rented” the property to defendant, provided that the title to the property should remain in the vendors until the whole amount of the purchase money was paid, the same to be paid in specified installments, and in case there was failure to make any payment the vendors reserved the right to take possession -without legal process. There was further provision that all payments should be placed to the credit of defendant as payments on the “lease,” as it is in places termed, or any other goods for which he might owe the vendors by way of open account on any other “lease,” and that the defendant was to have no title to the “lease” until his account should be settled in full.

Defendant executed the writing by making his mark, which Avas witnessed by one Freibaum, AArho Avas bookkeeper and credit man for the vendors, and, as the bill of exceptions states, the evidence shoAved that he controlled all matters pertaining to the sale of the furniture in question, but was a man on salary and had no pecuniary interest in the transaction. The writing was admitted to the consideration of the jury over the objection and exception of the defendant. Freibaum Avas a mere agent, and had no such direct and immediate interest in the contract as Avould render him incompetent to attest the execution of the writing. — Sowell v. Bank of Brewton, 119 Ala. 92, 24 South. 585.

Other objections to the admission of the writing appear to have proceeded on the idea that the vendors, having retained the legal title, had a general property in the goods, which was the subject of larceny or embézzlement, and no such mere claim as entitled them to the protection afforded by section 7842. In determining the real character of a contract, courts look to its pur pose rather than to the name given to it by the parties. The contract in question Avas a contract of conditional sale, the effort to disguise it as a lease t-o the contrary notAAÚthstanding. — 6 Am. & Eng. Enc. Law, 447. The retention of title by the vendors did not make them the absolute owners of the property. — Bingham v. Vandergrift 93 Ala. 283, 9 South. 280. It was, at most, a form of security for the payment of the purchase money. — Tanner v. Hall, 89 Ala. 628, 7 South. 187. The contract committed the property to the defendant for himself, and not for the vendors. He had the rights of user and enjoyment which are essential characteristics entering into the legal notion of property. The contract did not contemplate a redelivery of the property to the vendors so long as its terms were observed, and its character was fixed upon its execution and delivery. If honestly entered into by the defendant, it did not reserve to the vendors a property right which is protected by the statutes against larceny; nor did it confer possession on the defendant as clerk, agent, servant, or apprentice of vendors, so as to render his amenable to the statute against embezzlement.

The word “claim” in the statute is used in its popular sense, and signifies a right to claim; a just title to something in the possession or at the disposal of another. —Century Dictionary. In May v. State, 115 Ala. 14, 22 South. 611, it was ruled that a mortgagee, after the law day of the mortgage, was' a person having a claim to property embraced in the mortgage under a written instrument, within the language of section 3835, Code 1886, now section 7342, Code 1907. Accordingly, we hold that the objection taken by the defendant was not well taken.

The general affirmative charge, refused to the defendant, seems to have been intended to reiterate the objections which had been urged to the writing as evidence. That writing properly admitted, the case was clearly one for the jury. Two other charges refused, as they appear in the transcript of the record, are unintelligible, and were properly refused.

Affirmed.

Dowdell, O. J., and Anderson, McClellan, and Mayfield, JJ., conccur.