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Fitch v. State8/31/2001
der to find the defendant guilty of theft, the State must prove to you, beyond a reasonable doubt, that the defendant intended to deprive the owner of its property. Even if you find the defendant deceived Pickens County, you may not find him guilty unless the State proves beyond a reasonable doubt that the defendant deprived the county of the value of its contract. If you find that the county was provided the equivalent of the services contracted for, you may not find the defendant guilty of the charges of theft. "Alabama Code, § 13A-8-2(2). "Chandler v. State, 615 So. 2d 100 (Ala.Crim.App. 1992)." C.R. 193.
"A reversal will not be predicated upon the refusal of a requested charge where the import and intent of the defendant's requested charge is covered in the charge given by the trial court, even though the actual language of the request was not embraced within the court's charge." Evans v. State, [Ms. CR-98-0678, September 29, 2000] So. 2d , (Ala.Crim.App. 2000).
The trial court instructed the jury as follows regarding theft charged in case no. CC-97-0164.
"Now, count two of case [CC-97-0164] charges theft, first degree, by deception. A person commits the crime of theft of property if he knowingly obtains by deception control over the property of another with the intent to deprive the owner of his property. The theft of property which exceeds $1,000 in value constitutes theft of property in the first degree. Now, in this count, to convict, the State must prove beyond a reasonable doubt each of the following elements of theft of property in the first degree: First, that the defendant, Jerry T. Fitch, Sr., knowingly obtained by deception control over the property of the Pickens County Commission, more specifically, more than $1,000 out of $33,235 deposited to an account owned or partially owned by Jerry T. Fitch, Sr., out of funds expended for closure of the Pickens County Landfill; two, that the property exceeded $1,000 in value; third, that the defendant acted with the intent to deprive the owner of his property. One acts with intent to deprive another of his property when he acts with the purpose of causing that result. And I have already given you the definition as to knowingly. Now, the term `obtains control over property' includes but is not necessarily limited to, the taking, carrying away, or the sale, conveyance or transfer of title to or interest in or possession of property. Now, deception occurs when a person knowingly fails to correct a false impression which the defendant previously had created or confirmed, or fails to correct a false impression when the defendant is under a duty to do so.
"I instruct you that in order to find the defendant guilty of theft, the State must prove to you beyond a reasonable doubt, not only that the defendant deceived Pickens County, but that he also intended to deprive the owner of its property. Deception, unaccompanied by an intent to deprive the owner of its property, is not theft. Now, if you find from the evidence that the State has proved beyond a reasonable doubt each of these elements of the offense of theft of property in the first degree as charged, then you shall find the defendant guilty of theft of property in the first degree. If you find that the State has failed to prove beyond a reasonable doubt any one or more of the elements of theft of property in the first degree in this count, then you cannot find the defendant guilty of theft of property in the first degree. All right. Those are the two counts in case number [CC-97-0164]." R. 1252-55.
The trial court instructed the jury as follows regarding theft charged in CC-97-0282.
"Count four is a theft, first degree, by deception. This
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