Black v. State

398 So. 2d 332, 1980 Ala. Crim. App. LEXIS 1443
CourtCourt of Criminal Appeals of Alabama
DecidedNovember 25, 1980
Docket6 Div. 169
StatusPublished

This text of 398 So. 2d 332 (Black v. State) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Black v. State, 398 So. 2d 332, 1980 Ala. Crim. App. LEXIS 1443 (Ala. Ct. App. 1980).

Opinion

TYSON, Judge.

Lewis Black was indicted in three counts; (1) charging the unauthorized sale or conversion of rental property, (2) grand larceny, and (3) buying, receiving or concealing stolen property in connection with a “Denncrest brand portable sewing machine” of the value of $159.00 which Black had rented for a period of one week but had failed to either return or pay further rental fees on for some eight months thereafter. At trial, the State elected to seek a conviction under the first count of the indictment, charging the conversion of rental property, § 13-3-61, Code of Alabama 1975, and the jury found Black guilty of that offense. He was sentenced by the trial court to serve one year and one day in the state penitentiary, which sentence was subsequently reduced to two years probation. Black’s motion for a new trial was overruled by the trial court, and he brings this appeal to challenge the sufficiency of the evidence on which he was convicted.

The State called Mr. Harold Tygart, the business manager of the Evenpressure Company and its subsidiary, the AA Rent Village, located in the city of Tuscaloosa. Mr. Tygart testified that, on August 26, 1977, he had rented a Denncrest portable sewing machine to the appellant, whom he knew to be the manager of the Federation of Southern Cooperatives in Epes, Alabama. According to the testimony of Mr. Tygart and the documents produced by him and received into evidence, appellant signed a standard rental contract by which he agreed to return the machine by September 1, 1977, paid the initial week’s rental fee of $7.95, and left with the machine. The witness stated that, though the stated rental period was for one week, it “could have been continued by the paying of additional rent” (R. 11) in weekly increments, thereby allowing the rentor to keep the item for an indefinite period as long as the rental fees were in fact paid. Mr. Tygart further testified that the initial week’s fee of $7.95 was all that he received from the appellant, and appellant did not thereafter make any further rental payments, not did he return the sewing machine. When the machine was not returned on September 1, as provided in the agreement, Mr. Tygart stated, his office mailed several “reminders” to appellant concerning the machine and “indicated that to continue the rental in effect it would be necessary to pay rents” (R. 19); three such reminders were sent, one each on September 1, 6 and 16, to the address that appellant had provided when he signed the rental agreement. Mr. Tygart then stated that, as no rental payments were forthcoming and the machine was not returned, he telephone appellant on November 8 at his home in Greensboro to inquire about the machine and the unpaid rent, and was “informed that he (appellant) would send the check that day to catch the rent up to date” (R. 12). The witness further testified that he did not thereafter receive either the promised check or the machine, and thus drafted a letter to appellant, dated December 8, and in which he “demand [ed] that this Sewing Machine be returned to us today and all rental charges accrued be paid” (R. 15; State’s exhibit 3). Mr. Tygart stated that he sent this letter to appellant’s home address by registered mail, and subsequently received a receipt indicating that appellant had accepted the letter on December 24.

Mr. Tygart further testified that, having received no further reply to his letter, he again telephoned appellant on January 25, 1978, and told him that the unpaid rental was exceeding “the value of the machine, [334]*334and ... he should return the machine and pay the past due rentals” (R. 17), to which appellant “indicated that he would send the check that day, the 25th of January.” Again, the promised check failed to materialize and after several unsuccessful attempts to telephone appellant, Mr. Tygart reached Mrs. Black on March 15, who made similar promises to pay. Finally, on May 1, 1978, Mr. Tygart signed a warrant against appellant, but he stated in his testimony that he never did receive the sewing machine.

Under cross-examination, Mr. Tygart testified that he was somewhat familiar with appellant’s occupation as manager of the Federation of Southern Cooperatives, and with that of Mrs. Black, who managed the Greene-Hale Sewing Cooperative. He also stated that appellant had not violated any company rules or policies at the time he rented the machine, and that the rental company never attempted any sort of civil action in order to recover the machine. Mr. Tygart did state that appellant made the attempt to return the machine after he had signed the warrant against appellant, but that he was told by Mr. Tygart that “it was out of my hands” (R. 28).

Earl Harless, a detective with the Tuscaloosa Police Department, testified that, on May 4, 1978, appellant had come to the police station carrying the sewing machine in a box. Detective Harless testified that he removed the machine from the box, and in doing so located a scrap of paper with the words, “Here yore damn machine. Lewis” written thereon (R. 40; State’s Exhibit 4). The officer could not state with certainty that appellant had actually written the note. Detective Harless further stated that, after advising appellant of his rights from a Miranda card,1 he and appellant talked about the incident.

At this point the State rested and elected to seek a conviction on the first count of the indictment; appellant’s motion to exclude the State’s evidence as to this remaining count was overruled. Appellant took the stand in his own defense, and stated that he was the manager of the Federation of Southern Cooperatives in Epes, Alabama, and had been so employed since 1969. He further testified that his wife was the manager of a separate organization known as the Green-Hale Sewing Cooperative, with which he was not affiliated in any business sense. Appellant stated that he had rented the sewing machine at the AA Rent Village at the request of his wife, who was injured and could not come to Tuscaloosa to get the machine, and subsequently “turned it over to my wife who was managing the Greene-Hale Sewing Coop” in Greensboro (R. 48). Appellant further testified that he had paid the rental fee of $7.95 out of his own funds because in the past the rental company had not required any advance payments on property rented to either appellant’s concern or the Greene-Hale Coop. He also stated that he understood the machine was to be rented for one week. Appellant testified that he first became aware of the dispute with the AA Rent Village when he saw a notice from the company in the mail, but appellant’s wife told him, “ ‘Don’t worry about that ... I’ll take care of it’ ” (R. 49). He further acknowledged the telephone conversation with Harold Tygart on January 25, and stated that, after that conversation, he instructed his wife to mail a check to the rental company because it was her responsibility and he was not authorized to write checks on the Greene-Hale Coop account. Appellant testified that the next time he heard about any problems with the rental company was when he learned of the warrant signed against him by Mr. Tygart, at which point he had a “long discussion” with his wife about the situation.

Under cross-examination, appellant described his employment arrangement, stating that the cooperative managed by his wife was a separate entity from the association managed by him, although he provided training and assistance to cooperatives like the one run by his wife. He further testified that his wife’s cooperative leased several other machines, but had paid the fees for the use of those machines.

[335]

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Bluebook (online)
398 So. 2d 332, 1980 Ala. Crim. App. LEXIS 1443, Counsel Stack Legal Research, https://law.counselstack.com/opinion/black-v-state-alacrimapp-1980.