Opinion
3 Div. 402.
January 20, 1976.
Appeal from the Circuit Court of Montgomery County, Emmet, J.
James M. Fullan, Jr., Birmingham, J. Paul Lowery, Montgomery, William D. Latham, Clanton, for appellant.
Where one voluntarily parts with possession and title to property, even though motivated to do so through fraud, the offense is not larceny. Sullivan v. State, 43 Ala. App. 302, 189 So.2d 593; Lucas v. State, 49 Ala. App. 335, 272 So.2d 261; Blanton v. State, 36 Ala. App. 183, 53 So.2d 810; Hawes v. State, 216 Ala. 151, 112 So. 761; Murchison v. State, 30 Ala. App. 15, 199 So. 897; Latham v. State, 56 Ala. App. 234, 320 So.2d 747. Where a two count indictment fails of proof as to one count and the affirmative charge is requested as to that count, submission of that count to the jury with a resulting general verdict constitutes error to reverse. Stover v. State, 36 Ala. App. 696, 63 So.2d 386; Jones v. State, 236 Ala. 30, 182 So. 404; Hawes v. State, 216 Ala. 151, 112 So. 761; Jackson v. State, 33 Ala. App. 42, 31 So.2d 514, cert. den., 249 Ala. 348, 31 So.2d 519; Latham v. State, supra. It is firmly implanted in the foundation of public policy of the state of Alabama that no judge shall preside in a case in which he is not wholly free, disinterested, and independent, and it is well settled by the common law that no judge ought to act where, from interest or any other cause, he is supposed to be partial to one of the suitors. Ex parte White, 53 Ala. App. 377, 300 So.2d 420, cert. den., 293 Ala. 778, 300 So.2d 439. The property allegedly obtained by virtue of a false pretense is a matter of allegation in the indictment and proof at trial and a variance between allegata and probata constitutes a fatal variance. Smith v. State, 30 Ala. App. 158, 2 So.2d 341; Harrison v. State, 24 Ala. App. 9, 129 So. 718; O'Brien v. State, 238 Ala. 189, 191 So. 391.
William J. Baxley, Atty. Gen., and James S. Ward, Asst. Atty. Gen., for the State.
Where an indictment charges that money was obtained by false pretenses and the proof at trial shows that the money was obtained through a financial instrumentality or tool, no variance exists. Latham v. State, supra (1975). Where an affirmative charge is refused to each count of a two count indictment, and where a general verdict is returned, and where the evidence clearly supports one of the counts contained in the indictment, any resulting error for refusing the affirmative charge to the count supposedly unsupported by the evidence is but harmless and in no way prejudicial. West v. Geeshin, 37 Ala. App. 351, 69 So.2d 718, cert. den., 260 Ala. 701, 69 So.2d 724 (1954); Webb v. State, 33 Ala. App. 520, 35 So.2d 373 (1948); Kennedy v. State, 291 Ala. 62, 277 So.2d 878 (1973); Boyd v. State, 50 Ala. App. 394, 279 So.2d 565 (1973); State v. Hodge, 280 Ala. 422, 194 So.2d 827 (1967); Bryson v. State, 264 Ala. 111, 84 So.2d 785 (1956); Stallings v. State, 249 Ala. 580, 32 So.2d 236 (1947); Kabase v. State, 244 Ala. 182, 12 So.2d 766 (1943); Brown v. State, 33 Ala. App. 152, 31 So.2d 652 (1947); Bonner v. State, 28 Ala. App. 406, 187 So. 643 (1938); Title 7, Rules of Practice in the Supreme Court, Rule 45, Code of Alabama 1940 (Recomp. 1958). Deloney v. State, 225 Ala. 65, 142 So. 432 (1932); Norris v. State, 25 Ala. App. 493, 149 So. 583 (1933); McNutt v. State, 25 Ala. App. 129, 142 So. 773 (1932); Slayton v. State, 27 Ala. App. 422, 173 So. 632 (1937); Collins v. State, 27 Ala. App. 499, 176 So. 219 (1937); Chaney v. State, 20 Ala. App. 225, 194 So. 700 (1940); Newman v. State, 30 Ala. App. 529, 9 So.2d 768 (1942); Horton v. State, 30 Ala. App. 271, 480 So.2d 477 (1941); Alston v. State, 248 Ala. 163, 26 So.2d 877 (1946); Pruett v. State, 33 Ala. App. 491, 35 So.2d 115 (1948); Lowery v. State, 33 Ala. App. 401, 34 So.2d 191 (1948); Morgan v. State, 35 Ala. App. 269, 45 So.2d 802 (1950); Odom v. State, 253 Ala. 571, 46 So.2d 1 (1950); Shouse v. State, 36 Ala. App. 614, 63 So.2d 722 (1952); West v. State, 37 Ala. App. 125, 65 So.2d 203 (1953); Jarrell v. State, 35 Ala. App. 256, 50 So.2d 767 (1949); Wall v. State, 25 Ala. App. 589, 151 So. 611 (1973); Whitley v. State, 37 Ala. App. 107, 64 So.2d 135 (1953); Gilmer v. State, 31 Ala. App. 347, 17 So.2d 456 (1944); Wilson v. State, 31 Ala. App. 21, 11 So.2d 563 (1942); Jones v. State, 31 Ala. App. 504, 19 So.2d 81 (1944); Hodge v. State, 37 Ala. App. 450, 70 So.2d 285 (1954); Jones v. State, 260 Ala. 341, 70 So.2d 629 (1954); Smith v. State, 38 Ala. App. 23, 80 So.2d 302 (1954); Hamm v. State, 264 Ala. 366, 87 So.2d 865 (1956); Wilson v. State, 39 Ala. App. 77, 94 So.2d 408 (1957); Powell v. State, 39 Ala. App. 246, 100 So.2d 38 (1957); Jordan v. State, 39 Ala. App. 469, 103 So.2d 815 (1958); Morris v. State, 268 Ala. 60, 104 So.2d 810 (1958); Brown v. State, 40 Ala. App. 226, 112 So.2d 500 (1959); Smith v. State, 40 Ala. App. 393, 114 So.2d 295 (1959); Thomas v. State, 41 Ala. App. 19, 122 So.2d 731 (1960); Yessick v. State, 274 Ala. 488, 149 So.2d 818 (1963); Dunn v. State, 277 Ala. 39, 166 So.2d 878 (1964); Knox v. State, 213 Ala. App. 215, 187 So.2d 271 (1966); Ward v. State, 44 Ala. App. 229, 206 So.2d 897 (1967); Palmore v. State, 283 Ala. 501, 218 So.2d 830 (1969); Fuller v. State, 45 Ala. App. 133, 226 So.2d 677 (1969); Biggs v. State, 46 Ala. App. 585, 246 So.2d 472 (1971); Grayson v. State, 49 Ala. App. 279, 270 So.2d 826 (1972); Allen v. State, 290 Ala. 339, 276 So.2d 582 (1973); Taylor v. State, 49 Ala. App. 433, 272 So.2d 905 (1973). The question of recusal of the trial judge to preside over this case has previously been presented to this Honorable Court by appellant, and decided adversely to her. Latham v. State, 56 Ala. App. 234, 320 So.2d 747.
The two-count indictment charged the appellant with false pretense and grand larceny of certain machinery parts or supplies purportedly shipped to the Highway Department of the State of Alabama from Machinery and Supply, Inc., a corporation, of Montgomery, Alabama, acting through the appellant, and with the larceny of said items of the value of $488.45. At trial, the jury returned a general verdict of "guilty," as charged, and the trial court set sentence at ten years imprisonment in the penitentiary. The appellant's motion for new trial was denied.
The tendency of the State's evidence was to the effect that the appellant had sent invoices for four "U" joints and two repair kits of a total value of $498.42, less a 2% discount, being of the value of $488.45, to the State of Alabama. Requisitions were then issued from the Highway Department to the Finance Department for warrant covering payment, which warrant was approved in this instance on February 5, 1973.
An employee of the Union Bank and Trust Company, Edmund Dowe, testified that a warrant of the State of Alabama for $1,055.11 was deposited to the account of Machinery and Supply Company, Inc., on February 7, 1973, and that on this same date a money order was issued by the Union Bank and Trust Company in the amount of $1000.00, payable to Ruby Lee Latham.
I
At the close of the State's case, a motion to exclude as to each count in the indictment was made, which was overruled, and at the close of trial, there was a request in writing for the general affirmative charge as to each count in the indictment. These requested charges were refused by the trial judge.
Inasmuch as the testimony in this cause, except for the names of the designated machinery parts, requisitioned by the State of Alabama Highway Department, and the dates of the transactions involved, is essentially the same as that appearing in this Court's detailed opinion in Latham v. State, 56 Ala. App. 234, 320 So.2d 747, affirmed 294 Ala. 685, 320 So.2d 760, a more detailed statement is not here required. As in Latham, supra, the attorneys for the appellant requested the affirmative charge in writing as to each count in the indictment, and such was rejected by the trial court. The jury returned a general verdict of guilty. This squarely raises the question of the sufficiency of the evidence to support each count of the indictment in question. Inasmuch as our prior opinion is dispositive of the question of larceny under the evidence here presented, which clearly does not support such a charge, this cause is due to be reversed and remanded on authority of Latham, supra.
II
Counsel for the appellant also calls attention to the motion to recuse filed in writing, and exhibits thereto attached, which was denied by the trial judge. Inasmuch as the exhibits filed in this cause in support of this motion, are essentially the same as those set forth in the prior opinion of this Court, and the Supreme Court of Alabama in In re White, 53 Ala. App. 377, 300 So.2d 420, cert. denied 293 Ala. 778, 300 So.2d 439, such need not be here repeated. This prior opinion in Ex parte White, supra, is dispositive of the motion to recuse here at issue, and we do so determine.
For the errors shown, the judgment below is reversed and the cause is remanded for new trial.
Reversed and remanded.
All the Judges concur.