Summary
In Blair v. State, 105 Ga. App. 835, 125 S.E.2d 668 (1962) the conviction of an automobile salesman for larceny after trust was upheld where the accused sold a car entrusted to him by his employer to deliver to a customer.
Summary of this case from Van v. StateOpinion
39364.
DECIDED APRIL 27, 1962.
Larceny after trust. DeKalb Superior Court. Before Judge Hubert.
Robert Carpenter, A. Tate Conyers, for plaintiff in error.
Richard Bell, Solicitor-General, Dennis F. Jones, Assistant Solicitor-General, contra.
The evidence supports the verdict.
DECIDED APRIL 27, 1962.
Charles W. Blair was convicted of larceny after trust. The case is before this court for review upon the general grounds only of his motion for a new trial.
The evidence shows that the defendant was employed by Al Means, Incorporated, doing business as Al Means' Ford (hereinafter referred to as the company), a retail automobile concern in DeKalb County, as a salesman, and in that capacity he presented to the company an offer purportedly signed by Virginia Ann Atkins to purchase a 1960 Ford automobile from the company, which instrument was approved and executed by the company. Part of the purchase price was the trade-in of Virginia Ann Atkins' old car, and the remaining balance of the purchase price was to be paid in monthly payments specified in the conditional-sale contract. The defendant stated that he sold the trade-in automobile to a concern, Fulton Auto Brokerage, but he never delivered the proceeds of such sale to the company.
The documentary evidence shows a retail buyer's contract appearing to have been executed by Virginia Ann Atkins, a bill of sale to a 1960 Ford automobile to Virginia Ann Atkins, and a conditional-sale contract appearing to have been executed by one Virginia Ann Atkins. The bill of sale shows that the defendant was the salesman for the company.
The company discovered that the 1960 Ford automobile was sold at a Macon automobile auction by the defendant within a very short period of time after the company had entrusted the car to the defendant to sell and deliver to Virginia Ann Atkins. Several witnesses testified that the defendant told them that the purported sale contract for the 1960 Ford automobile was fictitious and that he had signed the contract himself, or that he had a woman sign Virginia Ann Atkins' name to the contract.
Virginia Ann Atkins testified that the contract for the purchase of the 1960 Ford automobile was authorized by her as well as the sale of the car through the Macon automobile firm.
Alford I. Means, president of the company, testified: "Q. Did you have an occasion to talk to Mr. Blair about this particular transaction [sale of the 1960 Ford]? A. Yes, I talked to him about this particular transaction on two or three occasions. The first occasion was before I knew it was anything wrong. We had an account on the books for two hundred and twenty dollars on accounts receivable, an account on the books outstanding with the Fulton Auto Brokers, I believe it was for two hundred and twenty dollars for a sale of a trade-in on this car from Blair or by Blair. And so I asked Blair where the money was that had been outstanding for a week or two. I asked him where the money was on this car and he said that he would go down and get it and that it would be available the following day. Q. Did he make it available? A. No, I never did get it. Q. Did you talk to him about it again? A. On one or two occasions I asked him on several different occasions about it after that as to why he didn't get it and then I talked to the sales manager and told him to be sure and have him get it. I mean I didn't follow it through. At a later time after I had learned that the car was down at the Macon Auto Auction I talked to Mr. Blair on the telephone and I asked him what the score was and he said that the contract was fictitious, that he had made it up himself, that Virginia Ann Atkins knew nothing about it, that he was — owed some money and was going to the chain gang about some money that he owed on some sales taxes of a previous business and that he was in serious trouble anyway and he had to have the money and that he had taken the car and sold it down there and she knew nothing about it, that the whole contract was fictitious." He further testified that the 1960 Ford automobile was turned over to the defendant by the company for the purpose of selling and delivering it to Virginia Ann Atkins.
Walter A. Wells testified that he was the sales manager of the company at this time, and he further testified: "You were familiar with this deal and it [contract for sale of the 1960 Ford] was presented to you by Mr. Blair and you approved it? A. This is the deal that I approved for Mr. Blair to sell a car to Virginia Ann Atkins for this amount, yes, sir. Q. Was that car turned over to Mr. Blair for delivery? A. The car was serviced and Mr. Blair took possession of the car to deliver the automobile, yes, sir. Q. Did you see him with the car? A. Yes, sir, he had the car at least two or three days after the deal was consummated, he was still driving the automobile. . . Q. After these papers [contract for sale of the 1960 Ford] had been signed and the car had been turned over to Mr. Blair, did you later have any conversation with Mr. Blair about this deal? A. Yes, sir, I did. Q. Where did you talk to him? A. In my office. Q. What was said between you? A. This was after we had learned that the car had been sold in the Macon Auto Auction and Charlie came to me and asked that I not tell Ann because she didn't know anything about the deal. Q. Virginia Ann — A. Virginia Ann Atkins, this deal here, yes sir. And I asked him who signed it and I asked him did she sign it and he said no, that someone had signed it for him." His testimony further shows that the car was entrusted to the defendant to be delivered to Virginia Ann Atkins, and the defendant was to return a signed conditional-sale contract or cash in the amount of the purchase price.
Two other witnesses testified that the defendant made similar statements to them.
A representative of the Macon Auto Auction firm identified a certain written application signed by the defendant to sell automobiles thought the auction firm as C. W. Blair, doing business as Blair's Used Cars, and further testified: "Q. Did Mr. Means get in touch with you about this automobile? A. Yes, he did. Q. After you had sold it? A. Yes, he did. Q. Did you recover it, get it back? A. Yes, we recovered the car. Q. Was the car that you recovered and turned over to Mr. Means the same car that was sold by Mr. Blair? A. Yes, it was."
Virginia Ann Atkins testified: "Q. I hand you State's Exhibit four, with reference to the sale of the car, bill of sale to the car to you and a transfer of that to Continental Acceptance Corporation; did you authorize Charlie Blair to affix your name to this contract to buy this automobile? A. Yes, sir, I sure did. Q. Did you ride in the car after it was purchased? A. Yes, sir. Q. Did Mr. Blair take you anywhere or did you drive it some yourself? A. No, I didn't drive it but he wanted me to. Q. You go with Charlie, don't you? A. Yes. Q. Did you let Charlie use the car? A. Yes. Q. Did you ever tell anybody that you did not authorize Charlie to have your name affixed to this contract? A. No, I told him not to let anybody call my office and bother me at my office about it. Q. Was there some restrictions on you? A. Well, I wasn't supposed to get personal calls at my office, and I was usually too busy to talk anyway. Q. Did anybody ever contact you in any way with reference to any credit reference of any kind? A. No. Q. Did you ever deny your liability under this S-4 [conditional-sale contract], did you ever deny that liability of owing for that automobile to any person on earth? A. No, sir, I told him if he couldn't pay for it I would pay for it. Q. You expected to pay for it? A. That's right. Q. Why didn't you buy it in Charlie's name? A. Because he didn't have any credit. Q. And you had a good job? A. Had a very good job. Q. And you bought other places where you could get references? A. That's right. Q. When Mr. Blair went to Macon, Georgia, did he tell you he was going down there? A. He told me he was going but he didn't say when. Q. What did he tell you? A. See, his wife was supposed to get married, that is when he bought the car; that is the reason he bought it. Q. You mean his ex-wife? A. Yes, sir, his ex-wife, she didn't get married. She was supposed to get married that week; after she didn't get married he said, Ann, we will have to sell the car. I said well, you can't keep up two families. See, we were going to get married, I said, Okay, go ahead and sell it so he did. Q. In other words, if she would get married that would stop her alimony; is that what it was? A. Yes, it would stop half of it, see. Anyway, we could have made the payments on the car. Cross-examination. Q. (By Mr. Daniel) You would have us believe today that you were thoroughly familiar with the purchase of this automobile; is that right? A. Well, I have told you what I know. Q. Did you know that the car was being purchased at the time this was being purchased and at the price that was being paid for it? A. I didn't know all the details but I didn't care. Q. Did you know that he was buying the car in your name? A. No, sir, I gave him my permission to buy it. Q. You gave him your permission just to do anything with your name that he wanted to? A. No, not anything. As long as you don't drag it through the mud it is all right. Q. You don't think he did that? A. No. I said if it wasn't paid for I would pay for it. Q. Do you know what the factory cost of that automobile was? A. No. Q. Do you know what he sold the car for; what price he could get for the car? A. I don't know, as much as he could I guess; wouldn't you? Q. If he went down there and sold it for more than two hundred dollars less than the factory cost to the dealer, this is the sort of thing you authorized him to do for you; is that right? A. Well, I just told him to sell it. Q. At even as much as two hundred dollars less than the — A. I didn't go with him, I just told him to sell it; I didn't say how much. I just said sell it and pay it off. Q. Isn't the truth of the matter that you didn't know anything about it until you found out he was using your name? A. No."
The defendant, in his statement to the jury, said that he got a woman who he had never seen before to sign the original buyers contract and, "I was buying the car in her name because my credit wasn't worth a dime and she gave me permission to buy the car. The reason for my buying the car is when I went to work at Al Means' Ford, they wouldn't let me have the kind of car that I wanted for a demonstrator. Well, I have always been a good salesman and in order to be a good salesman you have got to have a good car to drive, you can't just carry anything out to a customer and demonstrate it for him, if he don't like the car he is not going to buy anything from you. I go and discuss it with Ann and tell her I am paying Al Means ten dollars a week, which would be more than forty dollars a month to rent one of his cars that two or three salesmen ahead of me has torn up. I have tried to get it fixed and they wouldn't fix it so I told Ann I was going to buy my own car and so I purchased this car in her name, to use it for a demonstrator and that was when I found out that my wife was fixing to get married, my ex-wife, and in the meantime, the soldier that she was going to marry either backed out or something, anyway he went overseas. They didn't marry before he went overseas and therefore I couldn't pay her no two hundred dollars and make the payments of eighty-something dollars a month on the car and keep up myself. I just couldn't do it so I had to sell the car and in order to sell it, I had to take a loss on it. But, I paid the car off, paid every penny of it back including the two hundred dollars. I got twenty-four hundred dollars from the auction for it and I took the other money out of my pocket and paid the car off." He further stated that the check representing the amount realized from the sale of the automobile at the Macon Auto Auction was delivered to an agent of the company. The defendant further stated: "I don't feel like I owe anything on that car whatsoever because the trade-in that was involved in this car, I wholesaled that car to Fulton Auto Brokerage. Now, I don't know the exact date or what day of the week it was, but the next day after I sold it to them, they picked that boy up for some kind of a charge out in Arizona some where so that is the reason that that money has not been turned in. I told Al Means though that I would make the money good, I told him I would make it good. Q. You haven't done it have you? A. No."
Code § 26-2811, under which the defendant was indicted, provides: "Any person who has been entrusted by another with any cotton or other produce, or any goods, animal, or other article of value, for the purpose of selling the same and paying the proceeds of such sale to the owner or other person so entrusting or delivering the article, who shall fraudulently convert the same, or any part thereof, or the proceeds of any part thereof, to his own use, or shall otherwise dispose of the same to the injury and without the consent of the owner or other person so entrusting or delivering it, and without paying to such owner or person the full value or market price thereof, shall be punished by imprisonment and labor in the penitentiary for not less than one year nor more than five years."
The weight and credit to be given the testimony of the witnesses and the defendant's statement were matters exclusively for the jury. The fact that the witness, Virginia Ann Atkins, was closely associated with the defendant and that she intended to marry the defendant, and that she knew little or nothing about the purchase and subsequent sale of the 1960 Ford automobile, were facts and circumstances for the consideration of the jury. The rule is well stated in Haverty Furniture Co. v. Calhoun, 15 Ga. App. 620, 621 ( 84 S.E. 138): "It has never been held, and never can be held, that it is not within the power of a jury, after considering testimony of a particular witness, to disbelieve it, either from his appearance or his demeanor or manner upon the stand, or from the inherent nature of the facts testified to by him, although it be uncontradicted."
The jury was authorized to conclude from the evidence and the defendant's statement that the automobile entrusted to the defendant was delivered to him in DeKalb County for the purpose of selling and delivering same to Virginia Ann Atkins, and that the defendant formed the intent in DeKalb County to convert it to his own use. The defendant's contention that venue was not proved is without merit. See Heughan v. State, 82 Ga. App. 640 (3) ( 61 S.E.2d 685); McCranie v. State, 51 Ga. App. 192 ( 179 S.E. 826). The jury was also authorized to conclude that the sales transaction by the defendant to Virginia Ann Atkins was the result of a pretext, scheme, and device whereby the defendant obtained possession of the automobile described in the indictment for his own use and benefit, and that upon receiving possession of the automobile, he did fraudulently convert it to his own use to the injury and without the consent of the owner and without paying to the owner the full market price thereof.
Judgment affirmed. Nichols, P. J., and Jordan, J., concur.