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Fitch v. State8/31/2001
is case [CC-97-0282]. I've already read the general charge as to the theft by deception. As to this charge, 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 $30,000 in public funds expended for closure of the Pickens County Landfill; next, that the property exceeded $1,000 in value; next, that the defendant acted with the intent to deprive the owner of its property. One acts with intent to deprive another of his property when he acts with the purpose of causing that result. 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. Deception occurs when a person knowingly fails to correct a false impression which the defendant previously has created or confirmed, or fails to correct a false impression when the defendant is under a duty to do so. 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 the property is not theft. As to this count, 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 the offense of theft of property in the first degree, then you cannot find the defendant guilty of theft of property in the first degree." R. 1260-62.
Regarding requested charge no. 21, the trial court's instruction was similar to the requested charge, and it substantially tracked the language of § 13A-8-3, Ala. Code 1975. Moreover, the trial court instructed the jury that " eception unaccompanied by an intent to deprive the owner of the property, is not theft." Thus, the trial court's instruction was a correct statement of the law, and the import of the instruction regarding intent embraced Fitch's request to charge the jury that actions based on an "honest belief" prevent a finding of the element of intent necessary to return a guilty verdict on the theft charge. Thus, the trial court did not err in refusing Fitch's requested jury charge no. 21.
Likewise, regarding requested charge no. 24, the trial court's instruction was similar to the requested charge, and it substantially tracked the language of § 13A-8-3, Ala. Code 1975. Fitch's request to charge the jury that it had to find that "the defendant deprived the county of the value of its contract" in order to reach a finding of guilt was covered by the trial court's instruction that the jury must find that Fitch "intended to deprive the owner of its property" to reach a finding of guilt. Thus, the trial court did not err in refusing requested jury charge no. 24.
For the reasons stated above, the trial court did not err in refusing requested jury charges no. 21 and no. 24.
VI.
Fitch contends that there was insufficient evidence from which the jury could find him guilty of Count two in case no. CC-97-0282. Count two charged the following.
"JERRY T. FITCH SR., ... being a public official or employee, did knowingly and intentionally use his official position or office to ob
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