Opinion
7 Div. 107.
December 2, 1920.
P. E. Culli, of Gadsden, for appellant.
The court erred in its review and conclusions as to the charge of the trial court and the refusal by the trial court of the charges requested by the defendant. 17 R. C. L. §§ 1, 12, 27, 28; 70 Ala. 8, 45 Am. Rep. 67; 85 Ala. 17, 4 So. 691, 7 Am. St. Rep. 21; 86 Ala. 250, 5 So. 461, 11 Am. St. Rep. 37; 107 Ala. 154, 18 So. 109, 54 Am. St. Rep. 65; 58 Ala. 425, 29 Am. Rep. 762; 130 Ala. 60, 30 So. 396; 156 Ala. 44, 47 So. 302; 156 Ala. 112, 46 So. 856; 154 Ala. 7, 45 So. 900.
J. Q. Smith, Atty. Gen., for the State.
No brief came to the Reporter.
By this proceeding petitioner seeks to review the decision of the Court of Appeals, affirming the judgment of conviction against him for grand larceny.
The questions argued most strenuously by counsel for petitioner relate to the exception reserved to certain portions of the oral charge of the court, which will appear in the statement of the case.
It was contended on 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 thereafter, without his [owner's] knowledge or consent, wrongfully took the car from the owner's premises, and with felonious intent converted the same to his own use. Counsel lays particular stress upon that portion 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 purpose to subsequently convert it feloniously to his own use, and did so, this would be larceny. We are cited to 17 R. C. L. § 28.
Whatever may be the rule elsewhere, 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 So. 396, the court said:
"If the criminating tendencies of the testimony in this case are to be believed, the taking was tortious, a trespass. And if after acquiring the property, he conceived and executed the purpose subsequently to convert it feloniously to his 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 So. 552.
We are therefore of the opinion that when the portions of the oral charge of the court, to which exceptions are reserved, are 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.
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 sole purpose of trying it out for a specified time, and the defendant 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 the defendant obtained possession of the car under a special contract, such as would constitute him a bailee thereof, and comes within the doctrine announced in Crocheron v. State, 86 Ala. 64, 5 So. 649, 11 Am. St. Rep. 18, Eggleston v. State, 129 Ala. 80, 30 So. 582, 87 Am. St. Rep. 17, Parker v. State, 111 Ala. 72, 20 So. 641, and Pierce v. State, 124 Ala. 66, 27 So. 269, to the effect there could be no conviction of larceny under such circumstances without proof of the felonious intent on the part of defendant at the time he received the car. 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 not meet with our approval, yet the decision of the Court of Appeals is correct, and the petition for certiorari will be denied.
Petition denied.
All the Justices concur.