Opinion
5 Div. 66.
June 30, 1939. Rehearing Denied October 3, 1939.
Appeal from Circuit Court, Randolph County; Will O. Walton, Judge.
Manuel Pate was convicted of selling or removing personal property with intent to hinder, delay, or defraud one who had a valid claim thereto, and he appeals.
Affirmed.
Certiorari denied by Supreme Court in Pate v. State, 238 Ala. 440, 191 So. 641.
C. W. Clegg, of Wedowee, for appellant.
It was not sufficiently shown that the cotton involved was grown on Whaley's farm or that he has had a lien thereon, nor was it shown how much cotton was raised on said farm. Defendant should have had the affirmative charge. The jury should have been charged that if the amount of interest of Whaley in the crop was not as much as twenty-five dollars, defendant should only be punished as if guilty of petit larceny. The motion for new trial as for surprise and on ground of new evidence should have been granted. Cobb v. State, 100 Ala. 19, 14 So. 362; Shoults v. State, 208 Ala. 598, 94 So. 777; Jones v. State, 113 Ala. 95, 21 So. 229; Courtney v. State, 10 Ala. App. 141, 65 So. 433; Carter v. State, 16 Ala. App. 184, 76 So. 468.
Thos. S. Lawson, Atty. Gen., and Edwina Mitchell, Asst. Atty. Gen., for the State.
Special requested charges must be in writing. Code 1923, § 9509; Foote v. State, 16 Ala. App. 136, 75 So. 728; Mason v. State, 19 Ala. App. 473, 98 So. 137; Lee v. State, 27 Ala. App. 568, 176 So. 828; Henderson v. State, 137 Ala. 83, 34 So. 828. A prima facie case was made out against defendant, testimony to support every element of the offense being offered. The fact of removal raises the presumption of intent to hinder, delay or defraud. May v. State, 115 Ala. 14, 22 So. 611; Courtney v. State, 10 Ala. App. 141, 65 So. 433. The value of the property disposed of determines the degree of the crime, not the value of the interest the person defrauded had in the property. Courtney v. State, supra. The statute does not make the crime larceny. Code 1923, § 4925; Cobb v. State, 100 Ala. 19, 14 So. 362; Dillehay v. State, 18 Ala. App. 271, 90 So. 332. The Court will not review a ruling on motion for new trial where evidence supporting grounds of the motion does not appear in the bill of exceptions. Jordan v. State, 225 Ala. 350, 142 So. 665; Johnson v. State, 18 Ala. App. 72, 88 So. 353; Code 1923, § 6088.
Appellant was convicted of one of the offenses denounced by Code 1923, Sec. 4925 — removing or selling personal property for the purpose of hindering, delaying, or defrauding a person who had claim thereto under lien created by law for rent or advances.
Appellant complains that the general affirmative charge to find in his favor should have been given to the jury. But we do not find that any such charge, in writing, was requested by him. So of course the court was not in error in this regard. Henderson v. State, 137 Ala. 83, 34 So. 828. As said in the opinion in the case cited: "It has been uniformly held that the judgment of a trial court cannot be reversed for its refusal to give a charge asked, unless it appears that it was asked in writing, as the statute * * * requires."
But all of which is not to intimate that the charge mentioned should have been given, if it had been properly requested.
The only question that seems to require our attention is that as to whether or not the trial court was in error in refusing to grant appellant's motion to set aside the verdict of the jury.
As to this we make the following observations — before announcing our ruling, viz.: There was evidence that appellant rented land located in Randolph County from Whaley (the person named in the indictment as the one intended to be hindered, delayed, or defrauded, in the collection of his debt against appellant); that he rented it "on shares" and made a cotton crop on the land; that he did not pay the rent and that he disposed of the cotton.
This seems to us to make out every essential element of the offense charged.
The fact of removal raises the presumption of (the) intent to hinder, delay, or defraud. May v. State, 115 Ala. 14, 22 So. 611.
It was the value of the property removed which fixed the degree of the crime — i.e. whether the same as grand or petit larceny — and the value of the interest of the party defrauded, delayed, or hindered — in this case Whaley — was immaterial. Courtney v. State, 10 Ala. App. 141, 65 So. 433.
The evidence offered to support the grounds of the motion for new trial, asserting newly discovered evidence, does not appear in the bill of exceptions, and therefore nothing is presented for review on this phase of the case. Jordan v. State, 225 Ala. 350, 142 So. 665.
In view of the above it is plain the trial court committed no error in overruling appellant's motion for a new trial.
The judgment is affirmed.
Affirmed.