author: CLARK, Supernumerary Circuit Judge.

text:
    Ruby Lee LATHAM v. STATE.
    3 Div. 304.
    Court of Criminal Appeals of Alabama.
    Feb. 18, 1975.
    Rehearings Denied April 1, 1975.

      James M. Fullan, Jr., Birmingham, J. Paul Lowery, Montgomery, William D. La-tham, Clanton, for appellant.
    William J. Baxley, Atty. Gen. and William G. McKnight, Asst. Atty. Gen., for the State.
   CLARK, Supernumerary Circuit Judge.

A jury returned a general verdict finding appellant guilty as charged in a two-count indictment, the first count charging her with obtaining by false pretense “from the State of Alabama a sum of, to-wit: $489.90,” the second- count charging her with larceny of the same sum, “the personal property of the State of Alabama.” She was sentenced to ten years imprisonment in the penitentiary, the maximum punishment for each of the two crimes. Title 14, Sections 209 and 331, Code of Alabama. The counts of the indictment followed substantially the applicable forms prescribed by Title 15, Section 259, Code of Alabama (Form 60 as to obtaining money or other personal property by false pretense and Form 66 as to grand larceny). Each count of the indictment also charged one Robert O. Wilson with the same offense, but each defendant demanded a severance, which was ordered, and appellant after pleading not guilty was “tried separately, alone and apart from” the other defendant.

The paramount issue on the trial was the truth or falsity of some details expressed in the first count of the indictment to the effect that defendant did falsely pretend to the State Comptroller, or his duly authorized agent, with intent to defraud, that one J. F. Ragland had ordered or requisitioned for the State of Alabama, Highway Department, designated parts, machinery or supplies of the aggregate value of “$499.90,” that said property had been shipped or delivered to said Highway Department by Machinery and Supplies, Inc., a corporation, and that payment was due and owing thereon. The property involved was further described as “3 Tailwheel Assemblies, Stock No. 6320” and “5 Front Half 35R Universal Assemblies, Stock No. 377.”

After being identified by a witness from the Highway Department Bureau of Equipment, a field requisition for supplies dated December 28, 1972, purportedly signed by “J. F. Ragland,” otherwise identified as James F. Ragland, also employed by said Bureau, was admitted in evidence. James F. Ragland testified that he did not sign the requisition, that the signature thereon was not his, and that he did not authorize anyone to sign it for him. The requisition was for 3 Tailwheel Assemblies and 5 Front Half Universal Assemblies as described in the first count of the indictment and called for their delivery at a total price of “$499.90,” to J. F. Ragland, and was addressed to R. O. Wilson, otherwise identified as Robert O. Wilson, the other defendant charged in the indictment, at the time acting equipment maintenance director of the Highway Department Equipment Bureau. Mr. Ragland testified that he never received the particular items; that he had pulled every piece of paper in his office and had been unable to find any record of the items involved. He also testified that about ninety percent of the parts received in his warehouse are not given inventory numbers because their value is not great enough. He further testified that he knew Mr. Wilson, and that Mr. Wilson gave the instructions on how to handle the parts that came to the warehouse. Mr. Ragland had six or seven men under him, and he did not see every part which came into the warehouse. Mr. Rag-land’s testimony proved to be inapplicable to his duties at the time of the particular transaction involved, for on cross-examination he testified that he had been replaced for several months prior to December 28, 1972, in the work as to which he testified.

There was also introduced in evidence by the State an order dated December 29, 1972, (Local Delivery Order No. 97488) on a form of the Equipment Bureau, directed to Machinery & Supplies, Inc., for the identical items (and prices) listed in the material requisition. It called for delivery of the items to “Mr. R. O. Wilson,” was purportedly certified by R. O. Wilson as ordered on submitted forms and was also purportedly certified by him as “needed for official Highway Department work as authorized by me.” This Local Delivery Order contains a receipt for the listed items which was purportedly signed by “H. G. Sexton.” The order contains the signature of R. O. Wilson under the printed legend “Approved for Payment.”

Mr. Homer Sexton testified that he is employed by the State Highway Department Equipment Bureau. He identified himself as the person whose name was signed to the receipt portion of Local Delivery Order No. 97488, but stated that it was not his signature ahd he did not authorize anyone to sign for him. His records did not show that the equipment had been received, but he was unable to state whether the equipment had been received. Next to his name are handwritten marks that he identified as the initials which he related to the typist for the department by the name of Martha Morgan.

Martha Morgan testified that at the time of the issuance of Local Delivery Order No. 97488 Mr. Robert Wilson was her supervisor. It was her practice to type “L. D.O.’s” (local delivery orders) from hand-written field requisitions. She signed Mr. Sexton’s name to the particular L.D.O. She also signed Mr. Wilson’s name to two certifications as partly quoted hereinabove. The field requisition form was filled in in handwriting, which the witness testified was that of Mr. Wilson and that the field requisition was given her by Mr. Wilson. Mr. Sexton had never authorized her to sign his name on any L.D.O. The witness further testified that she was introduced to appellant-defendant in Mr. Wilson’s office; that she visited there frequently and that often, after such visits, the three of them would go for coffee. According to her testimony, after such visits by appellant-defendant, the witness usually had some invoices from which she typed L.D.O.’s. She said that appellant did not ask her to type the L.D.O.’s, that she was asked to do so by Mr. Wilson, but that appellant-defendant did sometimes wait for her to type them. In referring to her affixing the names of Mr. Wilson and Mr. Sexton to the documents, she said that one James White had told her that that was the way to do it.

Mr. William Norris, an employee of the State Comptroller’s office, whose immediate supervisor is the State Comptroller, testified that he is the custodian of the records of that department. He identified State’s Exhibit 2, which contained: 1. a State Highway Department Voucher No. 26013; 2. a copy of L.D.O. No. 97488; 3. an invoice from Material and Supplies, Inc., No. 1403, which items were admitted in evidence. There were seven transactions on the voucher, which were paid for by State Warrant No. 90463, on January 18, 1973, in the amount of $2,546.93. The L.D.O. and the M&S invoice called for payment of $499.90 with a two percent discount, making the sum due $489.90, which constituted one of the seven items on the voucher which was approved for payment on January 16, 1973. The witness stated that he audited this particular transaction from the standpoint of correctness of figures and signatures supporting the material receipts, that he approved it for payment and that he based his approval on the fact that the parts on the invoice and the parts on the L.D.O. were the same and the L.D. O. had a signature at every available place showing the parts were received. He said that State’s Exhibit 2 was the cause of the issuance of the warrant. He said that at the time of his approval he had not noted anything irregular about the transaction, that there was no signature of defendant on any of the papers, and that he did not know whether the materials were delivered.

The warrant for the sum of $2,546.93 payable to Machinery & Supplies, Inc., was introduced in evidence by the State upon its identification by Verna H. Gray, an employee of the State Treasurer’s Office, Supervisor of the Warrant Division. It was endorsed “For Deposit Only to the Account of Machinery and Supplies, Inc., Ruby Lee Latham, Secretary and Treasurer.”

Edwin Dow, an official of the Union Bank and Trust Company in Montgomery testified as to an account at the bank in the name of Machinery and Supplies Company. He identified a deposit slip of the Union Bank & Trust Company showing a deposit of $2,546.93, which he correlated with State Warrant No. 94063. The deposit slip was dated January 19, 1973. The witness also identified copy of a check drawn on the account of Materials & Supplies, which check was signed by appellant-defendant and dated January 19, 1973, and testified that for said check a bank money order was issued in the same amount. These and other items were introduced in evidence.

A vice president of the Citizens Bank & Trust Company of Selma, Alabama, testified as to a checking account statement for the month of January 1973 of defendant Ruby Latham. He identified an exhibit introduced in evidence as a copy of a deposit ticket for her on her account in the amount of $2,100 and a copy of the bank money order issued by the Union Bank & Trust Company to Ruby Latham in the same amount, as testified by Mr. Dow. He further testified as to several withdrawals by defendant Ruby, Latham as represented by cancelled checks in favor of various payees, some of which were payable to Machinery and Supplies.

Bryce Richbourg, an employee of the State of Alabama Examiners of Public Accounts Office, testified that in September-November 1973 he examined and audited purported purchases by the Highway Department from M&S, including those covered by State Warrant No. 90463 and Voucher No. 26013, including particularly equipment covered by L.D.O. No. 97488. He testified at length and upon profuse questioning by both counsel for the State and counsel for defendant as to the extent and accuracy of his investigation and audit. He testified that he did not find property or supporting documents to show possession by the purchaser of the property described in many of the documents purporting to represent purchases by the State Highway Department from Machinery & Supplies, including those listed in L.D.O. No. 97488. He discovered ,,approximately two hundred transactions' between the State Highway Department and Machinery and Supplies Company which were under $500.00, as to which he never found any of the property covered or supporting documents to show that the property involved in such transactions was ever in the possession of the Highway Department; his audit covered a period from July 19, 1971, to August 1973; throughout the investigation L.D.O.’s were discovered which were soundly documented, but there was a net charge back of $92,842. He testified that at no time did he ever find the signature of defendant Latham on any of the papers and that he was aware that Mrs. Martha Morgan had signed a number of the papers by signing the person’s name with her initials under it. The total amount of the transactions between the State of Alabama and Machinery and Supplies Company was afterwards shown on cross-examination of a defendant’s witness as totaling $179,-695.06.

An attorney for Machinery and Supplies, Inc., testified on the call of defendant that he incorporated Machinery and Supplies Company and related corporations of one Robert P. Stapp. The incorporators of Machinery and Supplies, Inc., were Stapp, the defendant and a secretary in the attorney’s office; all of the stock was after-wards transferred to Mr. Stapp; since the death of Mr. Stapp (in September 1972 according to another witness) the attorney had dealt with Ruby Latham as secretary of the corporation; she was the sole remaining officer and sole remaining director of the corporation. He said that as far as he knew as an attorney, Robert P. Stapp or his estate was the owner of Machinery and Supplies Company.

Edna Harris, a witness for the defense, testified that she had been a nurse (sitter) for Mr. Stapp for almost a year before his death in September 1972, that thereafter she commenced working for Machinery and Supplies Company and that her duties included checking parts as they would come in, that from time to time State of Alabama trucks would come to Machinery and Supplies and pick up parts and that on occasions she mailed L.D.O.’s to the State; that she did banking for Machinery and Supplies and the defendant, that she would take State warrants to the Union Bank and get money orders and on occasion would bring cash back and that the L.D.O.’s came to her through the mail. She testified that she had seen Robert Wilson at the office of Machinery and Supply Company and that she had seen another named employee of the State Highway Department come to the office of Machinery and Supplies and pick up merchandise.

Robert W. Pickett, Jr., was called as a witness for defendant. He is chief accountant for the Highway Department. He testified that he made an audit of “all the L.D.O.’s in question,” checking with the mechanics that were assigned to the shop and determined that the parts were not installed on their pieces of equipment. He also determined that two truck loads of parts were brought from Machinery and Supplies Company to the Highway Department warehouse in Montgomery and that the parts were inventoried. In the course of his audit Mr. Pickett discovered that there were parts on hand in various divisions that were not explainable, that is, that were not on any inventories and not justified by L.D.O.’s. On cross-examination he stated that the parts be discovered in his audit were not charged back in the L.D.O.’s and that some of the parts he discovered were obsolete.

W. G. Thomas, a witness for defendant, testified that he was employed by the State Highway Department and participated in the inventory conducted by Mr. Pickett. According to him, seventy-two percent of the items inventoried were usable by the State of Alabama and fifty-two percent were usable on the second shipment. On cross-examination he stated that he was not present when the first load of parts came in, but was present when the second load came in and that many of them were obsolete.

John Madison Cauldwell, a witness for the defense, Fiscal Supervisor for the State Highway Department, testified that he made an investigation on behalf of the Highway Director and determined that there were parts on hand which were not inventoried. A list of these parts was prepared and a value of $33,277.07 was given to them.

Witnesses were called who testified as to defendant’s good character.

Thereafter the State recalled the witness, John Cauldwell, for further cross-examination. He testified as follows:

“Q. In your judgment, the amount of parts received by the State of Alabama is not anywhere near a hundred and seventy-nine thousand dollars, is it ?
“A. Well, this would be a fact. You would have to reduce the hundred and seventy-nine thousand dollars by the amount of this claim. There is no question about that.
“Q. And that is some ninety-four thousand?
“A. Ninety-four thousand, in round figures.
“Q. In other words, what you are saying is, that amount, you know, they did not receive parts for ?
“A. I know that they did not receive those parts as set out on the LDO’s and I know those parts were not used on equipment as listed on the LDO’s.”

Neither appellant nor codefendant Wilson testified in the case.

In her brief and in oral argument of her counsel, appellant bases her request for a reversal chiefly upon the following contentions :

1. That the trial court committed error in submitting the larceny count (Count TJwo) to the jury.
2. That Count One (the obtaining by false pretense count) was erroneously submitted to the jury.
3. That the trial court erred in admitting in evidence testimony as to a statement by co-defendant Wilson.

We consider the contentions in the order they are presented in appellant’s brief.

There seems to be no disagreement between the parties as to appellant’s proposition that she is entitled to a reversal if the evidence was insufficient as to either count of the indictment. As above indicated, the verdict was general, not limited to one of the counts. The general affirmative charge was requested and refused as to each count. The principle relied upon by appellant in this respect is well established. Jones v. State, 236 Ala. 30, 182 So. 404; Hawes v. State, 216 Ala. 151, 112 So. 761; Stover v. State, 36 Ala.App. 696, 63 So.2d 386; Jackson v. State, 33 Ala.App. 42, 31 So.2d 514, cert. denied 249 Ala. 348, 31 So.2d 519.

In determining whether there was any evidence to support the allegations of larceny as charged in Count Two of the complaint, it is not for us to say whether there is evidence to support some offense that is or should be punishable as if it were larceny. We must determine whether there is evidence to support all of the essential elements of larceny itself.

The parties are in basic agreement as to the definition of larceny and rely upon the same authority, Livingston v. State, 44 Ala.App. 559, 216 So.2d 731, wherein larceny is defined as “ . . . the (1) felonious taking and (2) carrying away of (3) personalty of (4) another (5) with intent to (a) convert it or (b) deprive the owner thereof.”

Apparently recognizing that the evidence as to the conduct of defendant relative to the particular averment of Count Two of the indictment that she “took and carried away” described property of the State of Alabama does not come within the usual pattern of larceny cases, the State relies upon the principle established at common law and in Alabama to the effect that at times there can be larceny by trick and argues that when the fine line of distinction between larceny by trick and obtaining money or property by false pretense is applied to the evidence herein, a conviction of larceny is shown to be justified.

The State relies particularly upon Anderson v. State, 33 Ala.App. 531, 36 So.2d 242, cert. denied 251 Ala. 32, 36 So.2d 244, in which the evidence showed that defendant received a sum of money for the sale of an automobile. He did not deliver the automobile to the buyer and appropriated the money to his own use. It was there held that if he entertained a fraudulent purpose of appropriating the money to his own use he would be guilty of larceny, that “where one gains possession of the money so as to constitute only a bare charge, or custody, or procures it by subterfuge, it does not divest the possession of the true owner who is still in the constructive possession, and the offense of appropriating the money is larceny.” The opinion in the case makes it clear that unless the party injured surrendered “the possession of the money only and not the title thereto” the crime of larceny was not committed.

The rationale of cases to the effect that one can be guilty of larceny by trick, as distinguished from obtaining money or property by trick or false pretense, is that, at times, but not always, when he thus obtains it, the purported assent of the one injured is treated as a nullity and the taking of the money or property is treated as if no consent thereto had been given, but even in such cases it is clear that larceny is not committed unless the party injured parts with the property with the intent to part with possession only and not with title. Reynolds v. State, 31 Ala.App. 259, 15 So.2d 600, cert. denied with opinion 245 Ala. 47, 15 So.2d 605; Powers v. State, 31 Ala.App. 614, 21 So.2d 282, cert. denied, 246 Ala. 506, 21 So.2d 286; Blanton v. State, 36 Ala.App. 183, 53 So.2d 810; Hufstetler v. State, 37 Ala.App. 71, 63 So.2d 730. In Hufstetler, just cited, the court quotes with approval from 35 C.J.S. False Pretenses § 3, p. 638, as follows:

“The crime of obtaining money or goods by false pretenses is closely allied, or analogous, to that of larceny, and it has been said that the statutes denouncing it and like offenses were designed for the fuller protection of personal property and in aid of the laws.against larceny and theft. However, the two offenses are generally distinguishable, although the distinction is very fine where the obtaining of the money or property is accomplished by fraud, trick, or device. The distinction between the crimes of obtaining by false pretenses and larceny lies in the intention with which the owner parts with the property; if the owner, in parting with the property, intends to invest accused with the title as well as the possession, the latter has committed the crime of obtaining the property by false pretenses, but if the intention of the owner is to invest accused with the mere possession of the property, and the latter, with the requisite intent, receives it and converts it to .his own use, the crime is larceny.”

In Reynolds, supra, it was stated by the Court of Appeals:

“But of course it must always be kept in mind that there is a clear distinction between obtaining merely the possession, and obtaining both the possession and the title. In this latter case, the culprit could not be guilty of larceny. Murchison v. State, 30 Ala.App. 15, 199 So. 897. But in the former he could — and would. Savage v. State, 15 Ala.App. 168, 72 So. 694.”

In the cases listed, including Anderson, Blanton and Murchison, in which it was held that in the particular case larceny could have been committed as distinguished from obtaining money or property by false pretense, there were circumstances which either showed or tended to show that there was a parting with possession for a specific and limited purpose. In this case, whenever and wherever the money involved was parted with by the State, it cannot be said that it was parted with for a specific or limited purpose or that the State, or anyone acting for the State, intended to part with the possession only.

For an additional reason, whether considered standing alone or in connection with the reason just discussed, we think there was no evidence to support the charge of larceny. Larceny necessarily involves a trespass to personal property, whatever the form of the personal property, whether money, tangible property or intangibles such as checks, notes, promissory notes, etc. It must possess characteristics that enable it to be “taken and carried away.” Although it may be representative of property of a more substantial nature, it must possess some body of its own. In Milam v. State, 240 Ala. 314, 198 So. 863, it is stated:

“We may remark as to the proof of larceny, under our decisions and statutes, that such offense is based on the fact that it is a civil trespass on the possession of another as to his personal property done with a felonious intent. Larceny has been defined by this court in Edmonds v. State, 70 Ala. 8, 45 Am.Rep. 67, as follows: ‘The usual definition of “larceny” is, “the felonious taking and carrying away of the personal goods of another.” 4 Black.Com. 229. It is defined in Roscoe’s Criminal Evidence, as “the wrongful taking possession of the goods of another, with intent to deprive the owner of his property in them.” — lb. 622. It is a well-settled rule, liable to some few exceptions, perhaps, that every larceny necessarily involves a trespass, and that there can be no trespass, unless there is an actual or constructive taking of possession; and this possession must be entire and absolute. — Roscoe’s Cr.Ev. 623-24; 3 Greenl.Ev. § 154. There must not only be such a caption as to constitute possession of, or dominion over the property, for an appreciable moment of time, but also an asportation, or carrying away, which may be accomplished by any removal of the property or goods from their original status, such as would constitute a complete severance from the possession of the owner. 1 Greenl.Ev. § 154; Roscoe’s Cr.Ev. p. 625. * *

The money that defendant allegedly took and carried away was neither specie nor currency. Nor did it possess physical substance capable of being actually seized, possessed or moved.

Although the common law concept of larceny has been expanded by statute and judicial decisions of some states, we are of the view that as applicable to the facts in this case the rule we should follow is stated in 52A C.J.S. Larceny, § 2c, as follows :

“Generally, only property which is tangible and capable of being possessed may be the subject of larceny. The thing of which the owner is deprived must have corporeal existence, that is, be something the physical presence, quantity, or quality of which is detectable or measurable by the senses or by some mechanical contrivance, since a naked right existing merely in contemplation of law, although it may be very valuable to the person who is entitled to exercise it, is not a subject of larceny.”

We do not overlook the well recognized principle, by statute in most states and in Alabama, that property classified often as intangible can be the subject of larceny. In accordance with statutory authority as now found in Title 1, Section 2, Code of Alabama that “The term ‘personal property’ includes money, goods, chattels, things in action and evidence of debt, deeds, and conveyances.”, most or all of such items have been held to be the subject of larceny. Corbett v. State, 31 Ala. 329 (bank bills); Shannon v. Sims, 146 Ala. 673, 40 So. 574 (mortgages); Johnson v. State, 159 Ala. 113, 48 So. 792 (clearing house certificates). In accordance therewith, we have no doubt that the,warrant involved in this case issued by the State of Alabama constitutes property that is the subject of larceny, but the evidence does not show and the indictment does not charge that such warrant was “taken and carried away” by defendant. However defendant may have enriched herself unjustly or ille-gaily, she did not do so by taking and carrying away "to-wit: $489.90, of the val-ue, of, to-wit: $489.90 in lawful currency and coinage of the United States of Amer-ica.”

No larceny — no trespass — is charged in the first count of the indictment. The applicable statutory law consists of a departure in the field of criminal law from hard and fast procedural principles of early common law as to trespass, as was done in the field of civil procedure by the Statute of Westminster II, in its provision for civil actions in “similar cases,” that is, cases sufficiently “similar” to trespass actions to justify legal relief, even though they did not meet the inflexible requirements of trespass actions. The distinction between the two kinds of actions becomes relatively unimportant in civil proceedings by reason of the adoption of the Alabama Rules of Civil Procedure. In criminal law, however, the mentioned principles as to trespass survive, and we have no authority for a retrospective transition that produces the result accomplished in the field of civil procedure after proper notice, long study, and due process.

“The crime of obtaining property by false pretenses was unknown in the early common law.” 35 C.J.S. False Pretenses § 2. By the same authority and Section 4 thereof, we are informed that against a background of the loosely defined crime of “cheating,” the offense of obtaining property by false pretenses was ultimately the product of several English statutes, including that of 30 George II and 33 Henry VIII. The conduct involved and required does not necessitate the exertion of any physical force, actual or constructive. The actual conduct of the wrong is that of obtaining property by falsely pretending, while that of larceny consists of the taking and carrying away of property. The intent is generally the same as to both crimes, but the method of committing larceny is limited to such a method as would constitute a trespass. There is no such limitation on the method of committing the crime of obtaining property by false pretenses, which can well be by either word or deed.

Applying these distinctions and principles, we arrive at the conclusion that for money to be the subject of larceny, the money must be of such nature or composition that it can be actually taken and carried away but that obtaining money by false pretense can be accomplished as to money that cannot be so characterized. The reason for the difference is not to be found so much in a distinction between kinds of money, as in the differentiation between the verbs of the definition of larceny and the verb of the false pretense crime.

In Mason v. State, 23 Okl.Cr. 111, 212 P. 1028, appellant contended that there was a fatal variance between the proof offered and the allegations of an information, in that the proof showed that the property received by defendant was a city warrant, deposited in the bank to the credit of the defendant, and that the information charged defendant with obtaining money, "that credit in a bank, through the medium of a city warrant, is not ‘money’ within the meaning of the statute or the averments in the information.” The court held:

“We recognize that the rules of construction as above announced and applied have not been everywhere followed in all cases; but, considering the purpose of this particular statute, express and implied, we are impelled to hold, upon sound reason and respectable authority, that the word ‘money’ in this instance should be construed in a generic sense, so as to include coin, currency, drafts, warrants, and other things equivalent to money by means of which the person injured was deprived of money. We think it would be an outrageous injustice to the taxpayers of the city of Ardmore to hold otherwise on the flimsy pretext that the defendant obtained credit, but, strictly speaking, no money, at the time the warrant was deposited to defendant’s credit. By this false pretense the taxpayers lost this money or its equivalent, and that is sufficient.”

In a brief opinion in Pirkle v. State, 24 Ala.App. 19, 129 So. 707, it was held that obtaining money by false pretense could be shown by the obtaining of a “deposit slip” from a bank, upon which account a check was issued in favor of a creditor of defendant, which check was honored by the bank. The representation or pretense was made to the bank.

Pirkle, supra, afterwards became beclouded upon consideration of a previous opinion of the Court of Appeals, in Hendrix v. State, 17 Ala.App. 116, 82 So. 564, written by then Judge Joel B. Brown, aft-erwards Mr. Justice Brown of the Supreme Court, which held that an indictment charging that accused by false pretenses obtained $500 is not sustained by proof that he secured a check for $500. Neither Pirkle nor Hendrix went to the Supreme Court, but the state of the law on the subject as affected by Pirkle and Hendrix, supra, as well as by Pollock v. State, 210 Ala. 69, 97 So. 240 and O’Brien v. State, 238 Ala. 189, 191 So. 391, was considered by the Supreme Court, speaking through Chief Justice Gardner, in Simmons v. State, 242 Ala. 105, 4 So.2d 905, in denying certiorari in 30 Ala.App. 211, 4 So.2d 903, wherein Judge James Rice wrote the opinion in accord with the opinion he had written in Pirkle, supra. In Simmons, defendant was charged with obtaining money from a bank by false pretense in procuring a loan of the sum of $500, for which the bank issued a deposit slip and placed that sum to his credit in the bank. The evidence‘further showed that defendant issued a check for that amount the following day, which check was paid. On certiorari the Supreme Court stated:

“Indeed in City National Bank v. Burns, 68 Ala. 267, 44 Am.Rep. 138, the holding was that the act of the bank in crediting a depositor with the amount of a check drawn upon it by another customer, is ‘equivalent to a payment ih money’.
“It would be carrying technicality to a most regrettable extreme to hold that the proof of the mere instrumentality of obtaining the money constitutes a variance with the charge of obtaining the money itself, when the same evidence discloses the fact that the money was so obtained. Counsel for defendant lays stress upon two decisions of this Court. Pollock v. State, 210 Ala. 69, 97 So. 240 and O’Brien v. State, 238 Ala. 189, 191 So. 391.
“In the Pollock case the money was obtained upon a promissory note, which may be said to present a matter of difference. But even in that case the Court was sharply divided, the writer with Mr. Justice Somerville concurring in the dissenting opinion of Mr. Justice Thomas. Perhaps the O’Brien case is more nearly analogous, as it concerned the issuance of a check as the instrumentality through which the money was obtained.
“Mr. Justice Thomas and the writer acquiesced in the O’Brien case upon the theory the matter bad been set at rest by the previous decisions of the Court. As for the writer he has lived to regret the acquiescence, as, to his mind, there was presented a good opportunity for the Court to step in line with the weight of authority and more in accord with plain common sense.
“But here we are dealing with a deposit slip and the cases relied upon dealt with no such instrumentality. There is no occasion, for a definite announcement, therefore, as to either the Pollock or O’Brien cases.
“Courts are established for practical purposes and should function with a practical end in view. One of the outstanding values of a bank is the matter of safety to the depositor of his money, and, of course, the ‘deposit slip’ but evidences the fact, for all practical purposes, that the depositor has so much funds in the bank subject to immediate use.
“It was, in the instant case, merely the instrumentality through which the defendant received his money, and to hold a fatal variance in such a case would run counter to common sense and tend to frustrate the practical end, for the accomplishment of which courts were established.”

There was concurrence by all of the other justices sitting in the case other than Justice Brown, who dissented on authority of “Hendrix v. State, . . . and cases therein cited.”

In support of appellant’s contention that she was entitled to the general affirmative charge in her favor as to the false pretense count, her counsel insists that there was no substantial evidence to substantiate the charge of falsity of the representation allegedly made by appellant. Heavy reliance is placed on Taylor v. State, 46 Ala.App. 105, 238 So.2d 902. In an attempt via a “paraphrase” to apply what was held in that case to the facts of this case, counsel for appellant states:

“The State’s evidence at best tended to show that employees of the State of Alabama could not locate the property at some time subsequent to the date of January 16, 1973. Further, that the State of Alabama in the course of searching for the property discovered numerous items of property which were not reflected on the records of the State of Alabama. We do not believe that this is sufficient evidence upon which to predicate a conviction.”

We do not agree with the first sentence of the quoted statement, upon which the conclusion in the last sentence is primarily based. In the instant case there was much more than evidence to the effect that employees of the State could not locate the property subsequent to the time of the alleged criminal conduct. There was positive evidence from one whose name was signed to the requisition for the property involved that he did not receive it. There was positive testimony by the one whose name was signed to the receipt for the equipment that he did not sign such receipt and that his records did not show that the equipment had been received. He further testified that the parts listed in the particular local delivery order involved were not received by him and that he had never seen them to his knowledge. Although it may be correctly stated that it was not conclusively proved that the specific representation that the specific property .had been received by the State Highway Department was false, the specific order that makes that representation was unquestionably false in significant respects. The representation therein that R. O. Wilson certified by his signature that the items listed therein were ordered on a basis of forms submitted was false; that R. O. Wilson certified by signature that the items listed thereon were needed for official Highway Department work as authorized by him was false and that the representation that H. G. Sexton had certified thereon that the items listed therein were received by him was false. In this connection it should be stated that the scribbling just beneath the line upon which the names of R. O. Wilson and H. G. Sexton, which was identified by the witness Martha Morgan as her initials, cannot be identified without the benefit of her testimony or some other information that does not appear on the document, as decipherable initials of anyone or as purporting to constitute a clear representation that the purported signatures are not genuine. The purported signatures are written, rather than printed, in ink. The word “by” is not there. The circumstances are sufficient, we think to constitute evidence, whether conclusive or not, that R. O. Wilson knew of the irregularities of documents, which irregularities can be characterized as falsities, and which irregularities were not noted and were hardly noticable on the face of the documents by the employee of the State Comptroller’s office who approved the voucher for payment and authorized the issuance of the State Warrant. The purposeful falsities of the representations of the requisition for supplies and of local delivery order No. 97488 are traceable to Mr. Wilson and constitute vivid earmarks of knowledgeable falsity on his part of the representation that he had received the items of equipment involved. The circumstances shown as to the activity of appellant, her visits to the office of Mr. Wilson, her usual action of presenting invoices for the issuance of local delivery orders, her complete control of the business of Machinery and Supplies at the time of the particular transaction and her personal thereof, furnish ample substantial support by her personal withdrawal of a large part thereof, furnish ample substantial support for a finding by a jury that she participated in a scheme that defrauded the State of Alabama by a false representation as alleged in the first count of the indictment.

It is insisted by appellant that the trial court erred in permitting the witness J. M. Cauldwell to testify that Robert Wilson co-defendant in the indictment, but severed on the trial, told him that he took his orders from Gerald Wallace and Richard Stone. This testimony was given on cross-examination of the witness, who had testified as a witness for defendant. Appellant argues that at the time of the statement, several months after the time of the alleged crime, any conspiracy between the defendants had ceased and that the question of the admissibility of the statement is governed by the principle that where it is shown that a conspiracy continues to exist, the acts or declarations of one conspirator are admissible against the other when made in furtherance of the common design, but the acts or declarations are not admissible if it is shown that when they were made the conspiracy ceased to exist. Edwards v. State, 279 Ala. 371, 185 So.2d 393; West v. State, 168 Ala. 1, 53 So. 277. Appellee limits its contention on the question to reliance upon what may be considered either an exception or a qualification of the rule just stated, namely, that the efforts of one conspirator to destroy evidence or suppress testimony as to a crime are admissible against each participant. Dailey v. State, 233 Ala. 384, 171 So. 729; Lancaster v. State, 214 Ala. 2, 106 So. 617; Poellnitz v. State, 48 Ala.App. 196, 263 So.2d 181.

The State sought to relate the statement to a conversation between the witness and appellant wherein he asked her to give him any information that she could give to help him complete the investigation he was making at the time and that she did not give him any information; that at that time he told her that “it looked like she and Wilson were going to be in trouble” and that she replied “Oh, no. They won’t let Robert down.”

The issue between the parties on the matter is narrowed to whether the particular testimony is covered by the rule stated in Dailey, supra, as follows:

“But it is a further rule, generally recognized, that where there appears a continuing conspiracy to destroy the evidence of the crime, suppress testimony, the efforts of one in the accomplishment of this common purpose are admissible against each.”

The principle is splendidly summarized by Judge McElroy in The Law of Evidence in Alabama, (2d ed.) § 195.03(5):

“If the evidence warants a finding of accused’s participation in a conspiracy to suppress or fabricate evidence of the crime after its commission, an act or statement of a coconspirator in the accomplishment of this continuing conspiracy, is admissible against the accused.”

The particular ruling complained of was made after a colloquy in the presence of the jury among the court, counsel for the State and counsel for defendant, interspersed with the admitted testimony as to statements of the witness to defendant and her statement to him, as partly narrated above. As to some of such testimony, defendant objected on the trial, but that point is not raised on this appeal. Furthermore, the record indicates that the same evidence as to the conversation between the witness and appellant was otherwise introduced without any objection by defendant. When the question was asked calling for the testimony now under consideration, counsel for defendant objected and stated as grounds, “It calls for hearsay conversation,” to which counsel for the State replied “He is a co-Defendant. He is indicted. It was part of a scheme.” The court then overruled the objection and counsel for the State asked the witness to “Go ahead.” After he answered, counsel for defendant moved to exclude “the witness’ answer relative to conversations with the Defendant and with any other persons, including Wilson.”, and moved for a mistrial, assigning grounds as to each motion, “that defendant was not advised of her constitutional rights . . . nor was the testimony shown that Mr. Wilson was so advised of his rights; that Mr. Wilson’s conversation with this man would be hearsay. This is not a conspiracy trial, Your Honor. This is a trial for larceny and false pretense.” The court overruled the objection and denied the motion for a mistrial.

Although the respective contentions of the parties are in focus with us, we are not fully enlightened by either party as to the applicability of its or her contention to particular features of the great mass of testimony in the case. Also, we do not feel that their contentions are in the same focus with us as they were with the trial judge, either as to their applicability, or as to the basis shown on the part of the State for the contention that the statement was admissible, or on the part of the defendant for her contention to the contrary. As to the contentions now made, if the statement was not made by one acting in concert with appellant to suppress testimony, it was not admissible; on the other hand, if the two defendants were acting in concert to suppress testimony and the statement was made in furtherance of their efforts to do so, it was admissible whether the trial was a “conspiracy trial” or not. We do not find substantial evidence in the case to justify a conclusion by us that at the time of the statement the defendants were acting in concert to suppress testimony. It is our view that the statement should not have been admitted in evidence. It is to be noted that at the close of the evidence the State asked that it be allowed to reopen the case to show that the statements of the defendants were actually made “during the transactions and furtherance of the actual transactions which we have alleged constituted the conspiracy,” which request was denied. It is not for us to say whether the statement in question can be so buttressed by evidence as to be made admissible.

Appellant argues that the judgment below should be reversed and one here rendered discharging defendant. If appellant is correct in her claim that there is not sufficient evidence to present a jury question as to the guilt of defendant as to either count, the first or the second count, and that it appears that the State could not at another trial present such evidence, there is logic in the request for a judgment of reversal and rendition.

In view of our conclusion that the judgment of the trial court should be reversed by reason of the error of the court in refusing defendant’s requested general charge as to the larceny count of the indictment, our treatment of other questions may seem unnecessary, but such action has seemed to us appropriate in the interest of a final proper disposition of this case. Thereby the matter can be fully reviewed by the Supreme Court at the instance of the State and at the instance of appellant, to the end that a judgment be rendered affirming the judgment of the trial court, as urged by the State, or a judgment rendered reversing that of the trial court and discharging appellant, as urged by appellant, if the Supreme Court determines that the one or the other of such judgments is appropriate. At any rate, it seems desirable, if this case is to' be tried again, for the trial judge and parties and their attornéys to have the benefit of a final disposition of all questions raised on, this appeal and which will likely be raised again on another trial. With this in mind we have gone beyond a determination that defendant was entitled to the general charge in her favor as to the count of the indictment charging larceny.

For the errors stated, the judgment is reversed and the case is remanded for a new trial.

The foregoing opinion was prepared by Honorable Leigh M. Clark, Supernumerary Circuit Judge, serving as Judge of this Court under Section 2 of Act No. 288, Acts of Alabama, July 7, 1945, as amended; his opinion is hereby adopted as that of the court.

The judgment below is hereby

Reversed and remanded.

CATES, P. J., and TYSON, HARRIS and DeCARLO, JJ., concur.


source: Caselaw Access Project

author: MADDOX, Justice.

license: Public Domain

text:
    In re Ruby Lee LATHAM v. STATE of Alabama (two cases). Ex parte Ruby Lee Latham. Ex parte STATE of Alabama ex rel. ATTORNEY GENERAL.
    SC 1228, SC 1236.
    Supreme Court of Alabama.
    Sept. 18, 1975.
    Rehearings Denied Oct. 2, 1975.

      William J. Baxley, Atty. Gen., and James S. Ward, Asst. Atty. Gen., for the State.
    James M. Fullan, Jr., Birmingham, in opposition to the State’s petition for certio-rari and for the defendant, in support of her petition for certiorari.
   MADDOX, Justice.

Both the State and the defendant sought review, by certiorari, of the decision of the Court of Criminal Appeals, 56 Ala.App. 234, 320 So.2d 747. We granted both petitions. The State contends that the court erred in deciding that it did not prove larceny. The defendant, on the other hand, contends that the court’s decision conflicts with O’Brien v. State, 238 Ala. 189, 191 So. 391 (1939), in that Mrs. Latham was charged with obtaining $489.90 by false pretenses and the proof showed that the money obtained by the defendant was a state warrant. We reject not only the argument by the State but also that of the defendant and affirm the Court of Criminal Appeals.

As to the State’s contention that the charge of larceny was proved by showing that the defendant got the money by a state warrant, we affirm without further opinion.

As to defendant’s contention that the charge of obtaining $489.90 by false pretenses was not proved by showing that the defendant got the money from negotiating a state warrant, we also affirm.

The Court of Criminal Appeals followed Simmons v. State, 242 Ala. 105, 4 So.2d 905 (1941), and held that there was no variance between the allegations and proof on the false pretense charge. We agree. In Simmons, this Court stated:

“The opinion of the Court of Appeals discloses that defendant (petitioner here), obtained from the bank, by means of false pretenses, a deposit slip for $500 on October 3rd and checked out the said $500 the next day.
“Though the money was paid to him or to someone for his benefit, the day following the deposit,1 it is strenuously insisted there was a fatal variance between the allegation of the receipt of money and the proof of said deposit, and that by reason of such variance the affirmative charge was due in his favor.
“The ruling of the Court of Appeals in denial of this contention is supported by the case of Pirkle v. State, 24 Ala.App. 19, 129 So. 707, a decision by that Court not here reviewed. We think it likewise supported by the weight of authority elsewhere. 25 C.J. 641. Illustrative in support is Medders v. State, 54 Tex.Cr.R. 494, 113 S.W. 270, and illustrative to the contrary is Commonwealth v. Howe, 132 Mass. 250. But more to the point, the finding is supported by common sense and sound reasoning.
“True in a strict legal sense the relation of creditor and debtor exists between the depositor and the bank with actual legal title to the money in the bank. First National Bank v. Williams, 206 Ala. 394, 90 So. 430. But in practical effect the money is so on deposit for the immediate use of the depositor, and the well nigh universal expression ‘my money is on deposit’ is to be heard on every hand. And as a practical proposition the deposit slip is the mere instrumentality through which the depositor acquires the use of the money.
“Indeed in City National Bank v. Burns, 68 Ala. 267, 44 Am.Rep. 138, the holding was that the act of the bank in crediting a depositor with the amount of a check drawn upon it by another customer, is ‘equivalent to a payment in money’.
“It would be carrying technicality to a most regrettable extreme to hold that the proof of the mere instrumentality of obtaining the money constitutes a variance with the charge of obtaining the money itself, when the same evidence discloses the fact that the money was so obtained. Counsel for defendant lays stress upon two decisions of this Court. Pollock v. State, 210 Ala. 69, 97 So. 240 and O’Brien v. State, 238 Ala. 189, 191 So. 391.
“In the Pollock case the money was obtained upon a promissory note, which may be said to present a matter of difference. But even in that case the Court was sharply divided, the writer with Mr. Justice Somerville, concurring in the dissenting opinion of Mr. Justice Thomas. Perhaps the O’Brien case is more nearly analogous, as it concerned the issuance of a check as the instrumentality through which the money was obtained.
“Mr. Justice Thomas and the writer acquiesced in the O’Brien case upon the theory the matter had been set at rest by the previous decisions of the Court. As for the writer he has lived to regret the acquiescence, as, to his mind, there was presented a good opportunity for the Court to step in line with the weight of authority and more in accord with plain common sense.
“But here we are dealing with a deposit slip and the cases relied upon dealt with no such instrumentality. There is no occasion, for a definite announcement, therefore, as to either the Pollock or O’Brien cases.
“Courts are established for practical purposes and should function with a practical end in view. One of the outstanding values of a bank is the matter of safety to the depositor of his money, and, of course, the ‘deposit slip’ but evidences the fact, for all practical purposes, that the depositor has so much funds in the bank subject to immediate use.
“It was, in the instant case, merely the instrumentality through which the defendant received his money, and to hold a fatal variance in such a case would run counter to common sense and tend to frustrate the practical end, for the accomplishment of which courts were established.” [Emphasis added.]

The defendant here, as did the defendant in Simmons, lays stress upon O’Brien v. State, 238 Ala. 189, 191 So. 391 (1939). While O’Brien has not been overturned, it has been materially weakened as an authoritative case. As a matter of fact, Chief Justice Gardner, in Simmons, notes that he and Mr. Justice Thomas had acquiesced in the O’Brien case because they thought the matter had been laid to rest by previous decisions. It is apparent from a consideration of what was said in Simmons, that at least five members of this Court, as then constituted, thought O’Brien was not “in line with the weight of authority” and was not “in accord with plain common sense.”

Even though this case involves a warrant and not a check, as was the case in O’Brien, we think that would be a distinction without a difference. Consequently, we refuse to follow O’Brien. The better rule is obviously stated in Simmons. As was said in Simmons, it would be carrying technicality to a most regrettable extreme to hold that the proof of the mere instrumentality of obtaining the money constitutes a variance with the charge of obtaining the money itself, when the same evidence discloses the fact that the money was so obtained.

Affirmed.

HEFLIN, C. J., and MERRILL, BLOODWORTH, FAULKNER, JONES and SHORES, JJ., concur.

ALMON and EMBRY, JJ., not sitting.


author: SIMMONS, Supernumerary Circuit Judge.

text:
    Robert WALKER v. STATE.
    3 Div. 368.
    Court of Criminal Appeals of Alabama.
    Aug. 19, 1975.
    Edward Cunningham, Montgomery, for appellant.
    William J. Baxley, Atty. Gen., and Randolph P. Reaves, Asst. Atty. Gen., for the State.
   SIMMONS, Supernumerary Circuit Judge.

This is an appeal in forma pauperis from a judgment entered pursuant to a jury’s verdict convicting appellant-defendant of burglary in the second degree. The trial court sentenced defendant to six years imprisonment in the penitentiary.

The burglarized area was a gasoline filling station on state Highway 231 in Montgomery County, the property of Jim Brown.

Deputy Sheriff Duke testified that while traveling south with Deputy Richard Long in a patrol car, about 4:35 a. m., on February 14, 1974, they pulled into the service station; they observed a car was stopped on the side of the service station; Tommy Thornton was “in” the front seat, James Thornton was “in” the back seat and Robert Walker (defendant) was on the outside of the car.

Several photographs of the scene were marked for identification. There was am-pie evidence indicating that the station was broken into.

The witness testified that beer and potato chips, crackers, eggs, milk, were on the front and back seats of the car.

Deputy Richard Long testified that when he arrived the building had been broken into, the glass had been broken out, and the door was standing open. On the back seat ' of the car was a good bit of beer, eggs, milk, and “so on.” Some were dumped on the ground at the front wheel of the vehicle. The men were arrested.

James C. Brown, the owner of the burglarized station testified that he closed and locked the station in the evening of February 13, 1974. He also stated that he kept beer, potato chips, nick-nacks, cigars, cigarettes, milk, juices and “stuff of that sort” for sale; that when he arrived on the morning of February 14,4974, he found the store had been broken into; also, he observed that beer was gone, milk, eggs, potato chips and cigars were missing. We will not burden this opinion with further details of the missing items. He testified as to the value of the beer and other items in the store.

When the State rested the defendant orally moved the court for affirmative charge. The motion was denied, and correctly so. It was not in writing as required by law. T. 7, § 273, Recompiled Code 1958; Corrunker v. State, 19 Ala.App. 500, 98 So. 363(6); Norris v. State, 229 Ala. 226, 156 So. 556(23).

The defendant thereupon called Tommy Thornton as a witness. This witness testified that he knew Robert Walker, the defendant, and that he had a brother, James Thornton. He further stated that he was with his brother and Walker on the evening of February 13, 1974; all three were drinking; that he remembered being picked up by the police at a drug store and a filling station “combined or something.” He said on that night he was locked up for breaking and entering, to which he plead guilty and was sentenced; that they got in by breaking a glass door; that he broke the glass, and that so far as he knew, defendant was “in there, too.”

Further, he said they got some “beer and cookies and all. They’ve got it written down there what we got.”

The defendant did not testify.

The case was submitted to the jury who returned a verdict of guilty • as charged. There was no motion for a new trial.

The evidence was sufficient to sustain the verdict. If defendant was not an actual principal, he was an accessorial principal pursuant to T. 14, § 14, Code 1940.

We affirm.

The foregoing opinion was prepared by Hon. Bowen W. Simmons, Supernumerary Circuit Judge, serving as a judge of this Court under § 2 of Act No. 288, July 7, 1945, as amended; his opinion is hereby adopted as that of the Court.

The judgment below is hereby

Affirmed.

All the Judges concur, except CATES, P. J., not sitting.


author: HARRIS, Judge.

text:
    Donald COOK v. STATE.
    6 Div. 887.
    Court of Criminal Appeals of Alabama.
    Oct. 1, 1975.

      Elliott, Laird & Byars, Jasper, for appellant.
    William J. Baxley, Atty. Gen., and Carol Jean Smith, Asst. Atty. Gen., for the State.
   HARRIS, Judge.

Appellant was convicted for the illegal possession of narcotic drugs contrary to the provisions of the Alabama Uniform Controlled Substances Act. He was sentenced to a six-year term in the penitentiary. He was represented by a court-appointed lawyer. At arraignment he pleaded not guilty. He is in this court with a free transcript and trial counsel was appointed to represent him on this appeal.

Mr. Larry M. Ingle testified that on February 4, 1974, he was a police officer of the City of Birmingham, assigned to the United Narcotics Detail Operation; that around 7:30 p. m., on February 4, he received a call from a reliable informant telling him that appellant had a quantity of pills and was going to try to sell these pills that night or the next day. His informer was a federal officer, Mr. Gene McGinnis, with the Alcohol, Tobacco and Firearms Division of the U.S. Treasury Department.

After talking to Mr. McGinnis, Officer Ingle and two deputy sheriffs of Jefferson County and two ABC agents left Birmingham and went to appellant’s home in Carbon Hill, Walker County, Alabama, and set up a surveillance of appellant’s home. The time they arrived was 9:00 p. m., and they kept the home under surveillance until 2:30 a. m. on February 5, 1974. The lights in appellant’s home were on when the officers arrived and they saw appellant’s car but did not see him. The officers started watching appellant’s house again at 5:30 a. m. on that date. At approximately 8:45 a. m. appellant came out of his house and got in a Buick automobile with a 70 — tag and drove around for about ten minutes and returned home. At about 9:05 he got in a white Ford pickup truck and drove to Wright’s Service Station, where at 9:12 a. m. he talked with three white males in a red Ford. They attached a U-Haul trailer to the pickup, and the officer did not see appellant again until 12:00 o’clock noon when he returned to his home. At approximately 2:10 p. m. a new Ford pickup came to appellant’s house. Appellant got in this pickup and they rode around Carbon Hill for about temminutes. At this time Officer Ingle got a second call via radio from Officer McGinnis advising him that appellant was riding around town to see if there were any strange cars or strange people in the area. On this second call Officer In-gle was informed that appellant had some pills stored in the rear of his house. This call came at 2:20 p. m.

At approximately 2:30 p. m. appellant returned home and went in the front door of his house. Five minutes later appellant walked to the rear of his house, bent over and picked up something and walked back from the rear of his house. All of appellant’s movements were observed by Officer Ingle with a pair of binoculars. At about 2:40 p. m., he came out of his house and got in his Chevrolet automobile, tag number 70-443 and headed toward Jasper, Alabama, on Highway 78. At this time Officer Ingle received a third call informing him that appellant had the pills in his possession and was taking them to an Amoco Station in Jasper where he was going to meet someone and sell them to a Mr. Grady Hubbard who lived in the Piney-woods section of Jasper. On this third call Ingle was told that appellant could be armed. Officer Ingle got in pursuit of appellant but felt he was too far behind to overtake him and he called the radio dispatcher in Jasper and told him that he was in pursuit of a vehicle giving him the tag number of the car and a description of the automobile. He also told the dispatcher that the driver of this car was wanted for violating the Alabama Uniform Controlled Substances Act, and it was possible he could be armed.

Police Officer Hyche of the Jasper Police Department stopped appellant and got him out of the car and patted him down. About this time Officer Ingle pulled up and placed appellant under arrest and the time was 3:04 p. m. He was searched and the officer found three plastic vials which contained an assortment of pills and capsules which the officer testified were similar to pills that he had seen previously that were in violation of the Uniform Controlled Substances Act. He further testified that he placed the vials in three separate envelopes, sealed the envelopes and put his initials “L.M.I.” on the flaps and observed Sergeant George Hayes place his initials “G.H.” on the flaps. Ingle gave Hayes the three envelopes to take to the toxicologist. Two of the vials or bottles were found in appellant’s sweater pocket and one in his pants pocket. One of the bottles had a prescription label on it in the name of Betty Cook.

Mr. Arthur Craig Bailey testified that he was employed by the State Department of Toxicology and Criminal Investigation and was stationed in Birmingham. His qualifications were proven by the state and he stated that Sergeant George Hayes personally delivered three envelopes to him on February 6, 1974. He conducted a chemical analysis on these pills and found a number of them to be uncontrolled pills. He further testified that a number of the pills he analyzed contained 120 milligrams of amphetamine, 284 milligrams of phendi-metrazine, 120 milligrams of phentermine and 65 milligrams of chlorphentermine, all of which are regulated by the Uniform Controlled Substances Act.

Under the direction of the court Mr. Bailey separated the unregulated pills from the controlled pills. All of the controlled pills were placed in one envelope and introduced in evidence over the objections of appellant that they were illegally seized by the officers without a search warrant.

Appellant testified in his behalf and denied having in his possession any drugs that were controlled substances. He said he had already been searched by the Jasper police officer who stopped him prior to the arrival of Officers Ingle and Hayes. He claimed that the state officers framed him. He stated that when Officer Hayes searched him he “come up with hands full of everything.” In essence, he claims that Hayes “planted” the drugs in his sweater and pants pocket. To put it in his words, he stated, “They come up with something in their hand. I mean I didn’t see them come up with it in their hands. All I know is when they got through, they had it in their hands.”

Appellant admitted that he had previously been convicted for violating the Uniform Controlled Substances Act for which he was sentenced to a term of four years in the penitentiary. As a matter of fact, the trial judge ordered the Department of Corrections to return appellant to the Walker County Jail so that his appointed counsel would have, ample time to confer with him in preparation for the trial in the instant case.

In rebuttal the state called Mr. Benny Hyche, a police officer with the City of Jasper. Hyche testified that he received a radio message from headquarters that narcotic agents were trailing this car and needed help to stop him. He was given a full description of the car including the tag number. He stated that he fell in behind this car coming east on the 78 Bypass and turned the lights on him as he went under a red light. Appellant stopped his car and got out of the car and said, “I’m sorry officer, for running that red light.” The officer ordered him to put both hands on top of the car and he gave him a general “pat down.” During this frisk he felt some bottles in his sweater pocket. When the narcotic agents arrived, he told them he felt some bottles in his sweater pocket and was present when the agents searched appellant. He observed them remove two bottles from appellant’s sweater pocket. He did not remove anything from appellant’s pockets. The agents searched the car and found what turned out to be a bb gun.

Prior to trial appellant filed a motion to suppress the narcotics found in the search of appellant’s clothing on the grounds that they were obtained by an illegal search and seizure and there was no probable cause to stop his automobile. He further claimed that the officers had ample time to obtain a search warrant.- After hearing the testimony of Officer Ingle, detailed above, the court overruled the motion to suppress.

Appellant also requested the affirmative charge which was refused. Appellant filed a motion for a new trial but no evidence was offered in support thereof. The argument on the motion for a new trial raised the same legal issues that appellant raised during the trial. The motion for a new trial was overruled.

The fact that an informant reported to one officer who in turn relied on other officers to make search and arrest did not invalidate search or arrest. United States v. Robinson, 5 Cir., 457 F.2d 1304, certiorari denied, 409 U.S. 863, 93 S.Ct. 155, 34 L.Ed.2d 111.

Where an officer who has probable cause to make an arrest radios ahead to have an automobile stopped the officers who stop such automobile have probable cause to arrest without a warrant and the ensuing search of the automobile is valid. Kiel v. United States, 5 Cir., 406 F.2d 1323.

In Fennell v. State, 51 Ala.App. 23, 282 So.2d 373, this court said:

“Reasonable ground for belief of guilt or probable cause means more than a good faith suspicion. Probable cause exists where the facts and circumstances within the officer’s knowledge and of which he has reasonably trustworthy information are sufficient to warrant a man of reasonable caution in the belief that an offense has been or is being committed. The measure of legality of a seizure of an automobile without a warrant is whether that seizing officer has reasonable or probable cause to believe that the auto seized is carrying contraband. In cases where the securing of a warrant is practicable, it should be done, however, where seizure is impossible except without a warrant, the seizing officer acts lawfully when his actions are predicated on probable cause. Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543.”

There are six exceptions under which warrantless searches have been upheld: (1) plain view, (2) with consent voluntarily and knowingly given, (3) incident to a lawful arrest, (4) hot pursuit or emergency situations, (5) exigent circumstances coincidental with probable cause as in the case of movables, and (6) stop and frisk situations. Daniels v. State, 290 Ala. 316, 276 So.2d 441.

Exceptions 3, 4 and 5, supra, apply with full force and effect to this case.

The time frame in which the officers had appellant under surveillance and his movements and activities afforded1 no time to seek the issuance of a search warrant. It was not until Officer Ingle received the third radio dispatch that appellant was leaving his home to go to Jasper to sell and deliver the drugs did he have probable cause to believe that appellant actually had i,n his possession illegal drugs. At this point prudence dictated that he pursue the fleeing vehicle and radio the Jasper Police Department for aid in stopping appellant.

In Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327, the Supreme Court held:

“ ‘In dealing with probable cause, as the very name implies, we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.’ Brinegar v. United States, supra, 338 U.S. (160) at page 175, 69 S.Ct. (1302) at page 1310, (93 L.Ed. 1879). Probable cause exists where ‘the facts and circumstances within their [the arresting officers’] knowledge and of which they had reasonably trustworthy information [are] sufficient in themselves to warrant a man of reasonable caution in the belief that’ an offense- has been or is being committed. Carroll v. United States, 267 U.S. 132, 162, 45 S.Ct. 280, 288.”

It is sufficient to prove so much of an- indictment as shows that the defendant has committed a substantial offense therein specified. Owens v. State, 291 Ala. 107, 278 So.2d 693; Parks v. State, 46 Ala.App. 722, 248 So.2d 761.

“Where the. evidence presented raises questions of fact for the jury, and such evidence, if believed, is sufficient to sustain conviction, the denial of a motion to exclude the state’s evidence, the refusal to give the affirmative charge and the overruling of-a motion for new trial, does not constitute error,” Young v. State, 283 Ala. 676, 220 So.2d 843.

Appellant strenuously insists that Officer Ingle did not have probable cause to arrest appellant. We do not agree.

Here, the caller’s story is not corroborated by other sources or by the fact that he had previously given accurate information, but the story is corroborated by other facts stated by the caller as true of his own knowledge. The other corroborating facts are that events predicted by the caller happened almost precisely as foretold. The caller in the instant case was tested in the instant case. The accuracy of his information was tested in every particular. This being so, we are of the opinion that the hearsay and its reliability were sufficiently shown to justify a reasonable man in believing that appellant was in possession of narcotics and was on his way to Jasper, Alabama, to make a sale. Clenney v. State, 281 Ala. 9, 198 So.2d 293.

We have carefully examined the record for any reversible error injuriously affecting the substantial rights of appellant and have found none.

It is our opinion that the judgment of the trial court should be, and is, affirmed.

Affirmed.

TYSON, DeCARLO and BOOKOUT, JJ. concur.

CATES, P. J., concurs in result.


text:
    Johnny COVINGTON v. William P. McHENRY et al.
    No. 48345.
    Supreme Court of Mississippi.
    Oct. 6, 1975.
    Rehearing Denied Nov. 3, 1975.
    Stennett, Wilkinson & Ward, Jackson, for appellant.
    McLaurin & Nicols, Brandon, for appel-lees.
    Lake, Tindall, Hunger & Thackston, Greenville, and Joe Jack Hurst, Jackson, on motions.
    Before SMITH, ROBERTSON and BROOM, JJ.
   Affirmed and remanded for enforcement of decree.


author: ROBERTSON, Justice. JOE PAVELCHAK

text:
    TOWER LOAN BROKERS OF MISSISSIPPI, INC. v. J. W. DAVIS.
    No. 48353.
    Supreme Court of Mississippi.
    Oct. 13, 1975.
    Megehee, Brown, Williams & Corlew, Pascagoula, for appellant.
    Cumbest & Cumbest, P. A., John L. Hunter, Pascagoula, for appellee.
    Before GILLESPIE, SMITH and ROBERTSON, JJ.
   ROBERTSON, Justice.

Tower Loan Brokers of Mississippi, Inc., appeals from the judgment of the Circuit Court of Jackson County, Mississippi, awarding $7,000 damages ($2500 actual damages and $4500 punitive damages) to J. W. Davis.

Davis stated in his declaration that the appellant had obtained a writ of garnishment from a justice of the peace of Jackson County, and that said writ was served on his employer, Litton Ship Systems, Inc. Davis further alleged:

“That said Writ of Garnishment was improperly issued in that no valid judgment had been obtained; and further that the Plaintiff herein was not indebted to Allied Finance Company, Russell-Baker of Pascagoula, Inc., or Tower Loan Brokers of Mississippi, Inc.
“That the Plaintiff herein as a result of the actions and inactions of the Defendant has sustained damages in the amount of $99.00 being the amount wrongfully withheld, as well as damages arising from the fact that the Plaintiff’s credit had been damaged thereby, as well as damages sustained by the garnishment of his wages.”

Plaintiff ended his declaration by asking for actual damages of $2500 and punitive damages of $7500.

At the trial, the plaintiff introduced a civil affidavit as follows:

“Personally appeared before me, the undersigned authority one-who being sworn deposes and says that the foregoing and attached account for the sum of $84.00 & Cost against John Wesley Davis is just true and correct as stated and that the same is due and owing from the party against whom the same is charged and no part of the same has been paid.
Russell-Baker Finance Co. for
Allied
By: James Woitt
Sworn to and subscribed before me this the 11th day of Sept. 1973.

JOE PAVELCHAK

Justice of the Peace”

Plaintiff also introduced as an exhibit a writ of attachment issued against him as a non-resident by Joe Pavelchak, J. P. The writ recited:

“Whereas, Russell Baker Finance has complained on oath to the undersigned Justice of the Peace in and for said county and State aforesaid, that John Wesley Davis 22-24580 is justly indebted to the said Russell Baker Finance to the amount of $99.00 Dollars, and
“1. That the defendant is a foreign corporation or non-resident of the State;
“And It Being Suggested That Ingalls knows of persons so indebted to said defendant, or who have effects or property of the said defendant in their hands, you are hereby further commanded to summon said Ingalls and the said John Wesley Davis to appear before the said Justice of Peace at the time and place aforesaid to answer, under oath, in writing, whether they are indebted as aforesaid and to what amount, . . . .”
The return on the writ recited:
“I have this day executed the within writ by personally handing to Ingalls a true copy of the within writ.
WILSON
Constable
District 2
Jackson County,
Miss.”

Davis testified that no summons was ever served on him.

Ingalls Shipbuilding Division, Litton Systems, Inc., filed an Answer to the “Writ of Garnishment served on it,” admitting an indebtedness of $99.00 to Davis. Ingalls deducted from two weekly pay checks a total of $99 and remitted $96 of this amount to the justice of the peace, retaining $3.00 for its expense in preparing and filing the answer.

After the first deduction was made from his pay check for the week ending September 16, 1973, Davis went to appellant’s office and complained to manager Jimmy Woitt of the deduction. Davis testified that he told Woitt that he lived in Jackson County. On cross-examination Davis admitted that his address at Ingalls, on his driver’s license, for all charge accounts and for everything was Route 1, Box 105, Wilma, Alabama, but that he actually lived in Mississippi about 50 feet from the Alabama-Mississippi line. Davis stated that Woitt told him to see Justice of the Peace Joe Pavelchak and explain it to him. Davis testified that he tried to see Pavelchak, but had not been able to do so, and that he, Davis, -filed suit in December, 1973.

We are of the opinion that the appellant was entitled to a peremptory instruction at the close of the case, so we will discuss only that assignment of error.

Mississippi Code Annotated section 11-33-9 (1972) provides in part:

“The creditor, his agent or attorney, shall make oath before . . . any justice of the peace, ... of the amount of his debt or demand, to the best of his knowledge and belief, and shall also make oath, to the best of his knowledge and belief, to one or more of the following grounds for attachment:
“(1) That the defendant is a foreign corporation, or a nonresident of this state;”

The only affidavit signed by appellant was as to the correctness of the open account and that it had not been paid.

Mississippi Code Annotated section 11-33-11 (1972) provides in part:

“The creditor, his agent, or attorney, shall also give bond, with a sufficient surety or sureties, to be approved by the officer issuing the attachment, in double the sum for which the complaint is made payable to the defendant and conditioned to the effect following, to wit

This was not done, yet the Justice of the Peace on his own issued a writ of attachment. Davis himself brought out at the trial that Woitt, the manager of the Pasca-goula office of the appellant, was a layman and depended on the justice of the peace to issue the proper process.

Mississippi Code Annotated section 11-33-85 (1972) provides:

“On the trial of the issue of the truth of the alleged attachment grounds, the defendant may introduce evidence as to the actual damages, if any, which the issuance of the attachment has occasioned him; but the defendant, when he files his answer setting up the defense traversing the truth of the alleged attachment grounds, shall file therewith written notice of what damages he will insist ufon at the trial. If the issue be decided for 'the defendant, he shall have judgment that the attachment be discharged and against plaintiff and the sureties in his attachment bond, for the damages assessed by the jury and the costs of suit; and the jury may add to the actual damages found a reasonable sum as an attorney’s fee for defending the issue; but the judgment against the sureties in the attachment bond shall not exceed the penalty thereof.” (Emphasis added).

Section 11-33-85 clearly provides that the testing of the grounds of attachment shall be in the court initiating the suit and that actual damages shall be proved in that court also. Davis did not follow the procedure required by Mississippi law. Also the evidence introduced at the trial in the circuit court does not make out a case against the appellant.

The appellant was entitled to a peremptory instruction at the close of the case.

The judgment of the circuit court is, therefore, reversed, and judgment rendered here for the appellant.

Reversed and rendered.

RODGERS, P. J., and PATTERSON, INZER, SUGG, WALKER and BROOM, JJ., concur.


author: BROOM, Justice:

text:
    Jessie James DUBOSE v. STATE of Mississippi.
    No. 48704.
    Supreme Court of Mississippi.
    Oct. 13, 1975.
    A. H. McRae, Jr., Laurel, for appellant.
    A. F. Summer, Atty. Gen., by John C. Underwood, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before RODGERS, SUGG and BROOM, JJ.
   BROOM, Justice:

This rape case was tried in the Circuit Court of the First Judicial District of Jones County and resulted in a jury verdict of guilty as charged. Dubose, the defendant, appeals from the judgment which ordered that he serve a life term in the penitentiary. We affirm.

Issues raised relate to sufficiency of the evidence and the refusal of the trial court to grant two jury instructions requested by appellant.

Prosecutrix, twenty-nine years old, was returning to work following a visit to her parents. Dubose blocked the main traveled portion of the road with his car, forcing her to stop. He then forced her, at gun point, into the woods where he choked and raped her. After he released her, she went to her residence and called a neighbor who alerted her husband. The following day the father of the prosecutrix noticed a car resembling the one described by his daughter as her assailant’s vehicle. It was parked in a store lot. He took note of the tag number and went into the store to do some shopping. While in the store, he spotted a man fitting the assailant’s description. He went and got his daughter who, upon arriving, identified the man as her assailant. The tag number from the car in the parking lot was then given to law enforcement officers who arrested the appellant.

I.

The appellant contends that the evidence was insufficient for the issues of fact to be presented to the jury, and that the evidence failed to sustain the verdict of guilty.

Minute details of the entire episode were testified to by the prosecutrix during the presentation of the state’s case. She vividly described how she was thrown to the ground after Dubose drove her, in her car, into the woods. She said that she escaped once but that he grabbed her and threw her on the ground in front of her car where he pulled off her clothing and raped her. Her testimony reveals that there was no question in her mind but that Dubose was the one who raped her. When asked during the trial how she recognized him, she stated “by his physical appearances. I laid under him for fifteen or twenty minutes and I just know it is him.”

Argument is made that the prosecutrix mistakenly identified Dubose. It is pointed out that she did not notice a missing finger and a tattoo on Dubose’s hands. The mere fact that she did not note these physical characteristics was something for the jury to pass on in considering the weight and worth of her testimony. It is likewise true that the arresting officer, Nelson, also failed to note these physical characteristics of Dubose and was not aware of them until they were called to his attention by defense counsel during the trial.

We find no merit in the contention that the father of the prosecutrix influenced her to identify Dubose as her attacker. Careful study of the record does not reveal that her identification was tainted by coaxing or improper influence on the part of her father, who summoned her to the grocery store where he had seen a man (Du-bose) whose description was similar to that furnished by the prosecutrix.

It is true that identification of Du-bose was not corroborated by direct evidence from any other witness. Indeed, no such testimony was available since, as is usually the case, the rapist chose to perpetrate his criminal act in seclusion. This Court has held that the testimony of the victim of a rape may be sufficient to support a guilty verdict where the victim’s testimony is neither contradicted nor discredited by other evidence or by surrounding circumstances. Lee v. State, 242 Miss. 97, 134 So.2d 145 (1961).

Several hours after the rape occurred, the prosecutrix was examined by a medical doctor who found contusions and abrasions on various parts of her body. Pelvic examination conducted by the doctor revealed a bruised and bleeding cervix and a tender pelvis. Vaginal bleeding was also noted by him.

It was testified by the husband of the prosecutrix that on the day of the crime he went to the scene where he located a pair of house slippers belonging to his wife.

Without taking the witness statld (as was his right), Dubose sought to establish an alibi by other witnesses who testified in his behalf. The state’s proof showed that the rape occurred shortly after 2:30 p. m., but a defense witness (Mrs. Taylor) testified that Dubose was at her house most of the time on the day of the offense until about 3:00 o’clock in the afternoon, at which time she said he went to his aunt’s house next door. It was further testified by Dubose’s aunt that he was at her house asleep from about 2:00 p. m. until 4:00 p. m. on the day of the offense. In rebuttal, Officer Nelson testified that he questioned Mrs. Taylor during his investigation. Nelson stated that before the trial Mrs. Taylor told him that Dubose was in and out of her house on the day of the crime but that there were certain periods of time when she couldn’t say where he was. Another aspect of Officer Nelson’s testimony was that when he arrested Dubose, Dubose. (prior to being advised of the accusation against him) said, “I ain’t bothered no woman.”

Our analysis of the state’s evidence shows that it was sufficient to withstand Dubose’s motion for a directed verdict. It was the jury’s duty to decide upon conflicting testimony whether or not Dubose was guilty. The jury chose to accept the state’s evidence, which was sufficient to support the verdict. Cochran v. State, 278 So.2d 451 (Miss.1973); Chinn v. State, 276 So.2d 456 (Miss.1973).

II.

Refusal of the trial court to grant Dubose his requested instruction No. 8 is assigned as error. The requested instruction on the law of alibi as a defense might have been proper except that it stated: “The state must prove the alibi untrue. . . . ” The instruction with the quoted language is a distortion of the law and incorrect because the state, after presenting its case in chief, does not have the burden to prove that the alibi was untrue by rebuttal testimony after the accused rests. The state’s burden is to prove from the evidence, beyond a reasonable doubt, that the accused was at the scene of the alleged crime and committed the rape. Here the state’s testimony (its case in chief), which the jury could accept or reject, was in contradiction to Dubose’s alibi as testified to by his witnesses. Since the state’s proof in chief was contradictory of the defense of an alibi, the state was not required to rebut (by other evidence) the asserted alibi. Newton v. State, 229 Miss. 267, 90 So.2d 375 (1956).

Here, as was the case in Newton, the state’s proof in chief, if accepted as true, not only established Dubose’s guilt but conclusively placed Dubose at the scene of the crime and not at his aunt’s house. It was not necessary for the state to otherwise show that the alibi was untrue, and, thus, instruction No. 8 was properly refused.

Dubose contends that under this Court’s decision in Newell v. State, 308 So.2d 71 (Miss.1975), the trial court was obliged to give an instruction on its own as to the weight to be given his alibi. We held in Newell that:

[T]he trial judge shall not be put in error for his failure to instruct on any point of law unless specifically requested in writing to do so. (308 So.2d at 78).

Since the accused failed to request a proper instruction on the subject of his alibi, he cannot complain that the lower court declined to supply one to the jury on its own initiative.

III.

Refusal of the trial court to grant Dubose his requested jury instruction No. 1 is also assigned as error. The instruction was on the presumption of innocence and contained the following language :

[T]his presumption of innocence goes all the way through the trial with the defendant, and is sufficient to warrant an acquittal until the State has proven him guilty beyond a reasonable doubt.

A similar instruction was considered in Carr v. State, 192 Miss. 152, 4 So.2d 887 (1942), wherein it was pointed out that “no conviction could ever be had” if such an instruction is given with the “through the trial” language. Our decision there points out that the so-called presumption of innocence is not literally a presumption — an inference deduced from a premise — but more accurately an assumption which operates to place the burden of proof on the state. There, after stating that the burden of proof to establish guilt was on the state, the court said:

This burden never shifts to the defendant, yet there is no such sanctity in this assumption of innocence which renders it immune to actual proof of guilt, or prolongs its life beyond that moment when the reason and judgment of the jury accept the guilt of the defendant as proven. Redmond v. Marshall, 162 Miss. 359, 137 So. 733. Indeed, it should yield as to each respective juror as soon as and as long as such juror is by the evidence convinced beyond reasonable doubt of defendant's guilt.
There seems to be no reason why this assumption, although it may be conceded that it “enters the trial with the defendant,” should “go throughout” the trial despite its early or complete liquidation by overwhelming proof. (192 Miss. at 156, 4 So.2d at 888).

A similar instruction, was also condemned by this Court in Wells v. State, 288 So.2d 860 (Miss.1974).

Affirmed.

GILLESPIE, C. J., and PATTERSON, INZER, SMITH, ROBERTSON and WALKER, JJ., concur.


author: RODGERS, Presiding Justice:

text:
    SOUTHWEST DRUG COMPANY v. HOWARD BROTHERS PHARMACY OF JACKSON, INC.
    No. 48238.
    Supreme Court of Mississippi.
    Oct. 13, 1975.

      Young, Young & Scanlon, Robert B. Sessums, Jackson, for appellant.
    Brunini, Grantham, Grower & Hewes, Richard W. Dortch, Jackson, for appellee.
    Before RODGERS, P. J„ and SUGG and BROOM, JJ.
   RODGERS, Presiding Justice:

This case originated in the Circuit Court of the First Judicial District of Hinds County, Mississippi. From an adverse judgment dismissing plaintiff’s case, plaintiff has appealed to this Court.

These are the facts leading to the judgment of the trial court and the appeal to this Court.

The plaintiff, Southwest Drug Company, filed a suit against the appellee, Gibson’s Pharmacy of Jackson, Mississippi, and Alton H. Howard. The trial court sustained a motion dismissing the suit against Mr. Howard, since the court had no jurisdiction o'f any claim against him. No appeal was taken as to this order.

The appellant’s suit against the appellee was based upon the allegation that the defendant Howard Brothers Pharmacy of Jackson, Mississippi, had interfered with a lease contract obtained by the appellant for the lease of certain property belonging to W. W. Warren, but which was known by appellant to be occupied by the appellee.

It is alleged that the date when the contract was to begin was determined and that W. W. Warren gave notice to the appellee Howard Brothers Pharmacy to vacate the building. It is said that the appellee refused, however, and neglected so to do; that it continued to occupy the property so that the appellant was denied the use of the building; and that the appellee maliciously and willfully retained possession of the property to the damage of the plaintiff (appellant). The plaintiff then demanded a judgment against the defendant (appel-lee) in the sum of one million dollars ($1,000,000.00).

A motion was made by the appellee requesting the court to require the plaintiff to make the declaration more specific as to damages. This motion was sustained, and a new declaration was filed setting forth certain damages alleged to have occurred to the plaintiff by reason of the purchase of fixtures and inventory to go into the drugstore. No mention was made of rent due.

A new motion was filed requesting the court to require the plaintiff to make his declaration more specific or, in the alternative, that the declaration be dismissed. The trial court sustained the motion, and the plaintiff again amended his declaration; whereupon, the appellee again moved the court to strike the allegations of damages from the declaration. The last motion was sustained, and when the plaintiff refused to amend the declaration, the case was dismissed without prejudice.

The appellant contends on appeal that the appellee maliciously and willfully interfered with its lease contract with W. W. Warren so as to prevent it from occupying the building to the financial damage of the appellant, and for which it is entitled to punitive damages. It is argued, therefore, that the trial court was in error in dismissing the declaration.

There can be little doubt that there is a general rule of law whereby a party to a contract has a right of action against a person or a corporation who has willfully procured a breach of the contract by the other party to the contract. This rule does not apply where one interferes with another’s contract in the legitimate exercise of one’s own right. This rule is said to have originated in the English case of Lumley v. Guy, 2 El. 8 Bl. 216, 118 Eng. Reprint 749, 1 ERC 706 (1853). The rule has been thoroughly meshed into the law of the various state and federal courts of America. Annot., 84 A.L.R. 43-55 (1933); 26 A.L.R.2d 1227-1285 (1952); 45 Am.Jur.2d Interference § 1, at 280 (1969). It is said that this doctrine of liability is that the right to perform a contract and to reap the profits resulting from such performance, and also the right to performance by the other parties, are property rights which are entitled to protection. 45 Am.Jur.2d Interference § 39, at 314 (1969); 30 Am.Jur. Interference § 21, at 73 (1958).

On the other hand, the appellee contends that the sole issue in this case is whether or not Mississippi Code Annotated Section 89-7-25 (1972) is applicable to the facts here shown. This section of our Code is in the following language:

“When a tenant, being lawfully notified by hlis landlord, shall fail or refuse to quit the demised premises and deliver up the same as required by the notice, or when a tenant shall give notice of his intention to quit the premises at a time specified, and shall not deliver up the premises at the time appointed, he shall, in either case, thenceforward pay to the landlord double the rent which he should otherwise have paid, to be levied, sued for, and recovered as the single rent before the giving of notice could be; and double rent shall continue to be paid during all the time the tenant shall so continue in possession.”

The declaration herein set out that the appellee was a tenant of one Henry Williams under a lease contract extended to May 31, 1972; that prior to the extension, Mr. W. W. Warren became the owner of the property. It is then alleged that W. W. Warren did not renew the lease except on a month-to-month basis. Thereafter, on June 16, 1972, Mr. Warren leased the building to appellant. It is further alleged that appellee was duly notified, but, that it willfully refused to surrender possession of the premises as it was required to do; therefore, the appellant was forced to terminate his lease contract with W. W. Warren.

The allegations of the declaration clearly show that the appellee was a tenant alleged to be holding over after the expiration of its lease contract. But the question then arises: Does the phrase “thenceforward pay to the landlord double the rent which he should otherwise have paid” imply that a contract with a new tenant limits the right of the new tenant to the damages of double the rent originally paid the landlord?

This Court has said that the foregoing Code § 89-7-25 is exclusive in dispossesso-ry proceedings and is res judicata of a landlord’s action for damages. Tepper Bros. v. Buttross, 178 Miss. 659, 174 So. 556 (1937).

In the instant case, the landlord W. W. Warren did not covenant with the appellant to put the appellant in possession of the lease premises and, therefore, the landlord had no right to bring a dispossessory action. This right was transferred to the lessee Southwest Drug Company. Ward v. Hudson, 199 Miss. 171, 24 So.2d 329 (1946); McMillan v. Best, 171 Miss. 811, 158 So. 488 (1935).

In Tepper Bros. v. Buttross, supra, we said that the section of the Code [Section 2225, Mississippi Code 1930, now Mississippi Code Annotated § 89-7-25 (1972)] “affords an exclusive remedy as the measure of damages for holding over after notice to vacate. The statutory rule of construing laws is that where a statute enumerates the powers given, it must be held that it names all the powers dealt with therein, and that there is nothing implied.” 178 Miss. at 664, 174 So. at 556. See also Hines Motor Co., Inc. v. Hederman, 201 Miss. 859, 30 So.2d 70 (1947).

We have consistently held in many cases since that time that where a statute enumerates and specifies the subject or things upon which it is to operate, it is to be construed as excluding from its effect all those not expressly mentioned or under a general clause, those not of like kind or classification as those enumerated [Inclusio unius est exclusio alterius.] Akers v. Estate of Johnson, 236 So.2d 437 (Miss.1970). Although the plaintiff, Southwest Drug Company, knew that Howard Brothers Pharmacy had possession of the property leased, Southwest made no effort to ascertain from Howard its claim to the property before Southwest incurred the alleged damages set out in its declaration.

We hold that the new tenant, Southwest Drug Company, is bound by the terms of Mississippi Code Annotated Section 89-7-25 (1972) and can recover no more than the damages allowed the landlord against the tenant for holding over under this section of the Code. The trial court was correct in requiring an amendment to the declaration to show the damages due, if any, under the foregoing section. This does not mean, however, that the appellant is precluded from pursuing other remedies open to it.

The judgment of the trial court is therefore affirmed.

Affirmed.

GILLESPIE, C. J., and PATTERSON, INZER, SMITH, ROBERTSON and WALKER, JJ., concur.